Appendix — Trbovich v. Mine Workers

Supreme Court brief1972

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SS PEND R Re PRA

Supreme Court. U-S-

_ APPENDIX eLTLED

- TERM, 1971

No. 71-119

MIKE TRBOVICH,

Petitioner,

UNITED MINE WORKERS OF AMERICA, et al.

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit:

PETITION FOR CERTIORARI FILED JULY 23, 1971

CERTIORARI GRANTED OCTOBER 19, 1971

THE CASILLAS PRESS, INC.—1717 K Street, N. W.—Washington, 0. C.~223-1220

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TABLE OF CONTENTS

DOCKET ENTRIES.

COMPLAINT in 662-70

MOTION FOR PRELIMINARY INJUNCTION

and EXHIBITS

MOTION OF MIKE TRBOVICH, Individually and

as Chairman and on Behalf of Miners for

Democracy ‘for LEAVE TO INTERVENE,

and EXHIBITS , wok

DEFENDANT'S OPPOSITION TO MOTION

TO INTERVENE _ . .

OPPOSITION TO PLAINTIFF'S MOTION FOR

A PRELIMINARY INJUNCTION .

ORDER AND OPINION DENYING MOTION TO

INTERVENE . . os.

ANSWER

COURT OF APPEALS’ JUDGMENT .

ORDER GRANTING PETITION FOR

WRIT OF CERTIORARI .

ADDENDUM to the Secretary of Labor’s

Brief in the Court of Appeals .

Page

“17

28°

101

105

. 110

115

izZ

122

123

IN THE UNITED STATES DISTRICT COURT

| FOR THE

DISTRICT OF COLUMBIA |

GEORGE P. SHULTZ,

Secretary of Labor

United States Department

of Labor,

Plaintiff,

CIVIL ACTION

FILE NO. 662-70

UNITED MINE’ WORKERS SO

OF AMERICA,

Defendant.

DOCKET ENTRIES

March > Complaint, filed.

5 | Summons and Complaint issued; served

3/18/70.

5 ~~ Motion for preliminary injunction, affidayits

and exhibits, filed.

-6 Memorandum in support of motion for pre-

liminary injunction, filed.

18 Appearance of Edward L. Carey, Harrison

Combs, Willard P. Owens, Charles ‘Widman

and Walter Gillcrist for deft., filed.

CRETE REEDS 25:0

te Balebok a) rephdninil

«18

18.

April 2

Interrogateries of deft. to pitf., filed.

Motion of deft. for extension of time to file

opposition to motion for preliminary injunc-

tion, affidavit, filed.

Objections of pltf. to interrogatories, filed.

Response of pltf. to deft.’s motion for exten-

sion to respond ‘to motion for preliminary

injunction, filed.

Order extending time for deft. to file opposi-

tion to/ motion ‘for preliminary injunction:

until May 1, 1970.

Motion of pltf. for additional time to answer *

interrogatories, filed.

_ Motion of deft. for extension of time to file ©

answer or otherwise plead.

Appearance of Carey, Combs, Owens, Widman

and Gillcrist, filed.

Response of deft. to pltf.’s motion for exten-

sion of time to answer interrogatories.

- Answer of pltf. to deft.’s interrogatories, Ex-

hibits A-H, filed.

Motion of deft. for extension of time to file

response to pltf.’s. objections to interroga-

tories, filed. °

Response of pltf. to deft.’s motion for exten-

sion of. time within which to-file its answer

or otherwise plead, filed.

May

-Motion of deft. to quash subpoena duces |

tecum, exhibit, filed.

Copy of letter to Emmett Thomas from

Dept. of Labor, filed.

Order denying deft.’s motion to quash sub-

poena duces tecum, McGuire, J.

Notice of appeal by ‘deft. from order of

4/26/70; copy mailed to Orlikoff, filed.

Motion of deft. to compel pltf. to answer

certain interrogatories, filed.

Record on appeal delivered to USCA.

Receipt by USCA ais aia record filed,

filed.

‘Transcript of vies 4-3-70; filed.

Mesnoeonauin of law in support ‘of objections

“to deft.’s interrogatories, -filed.

Motion of deft. for extension of. time to file

opposition to plitf.’s motion for preliminary

injunction, filed.

Motion of pitt. for extension of time to

respond to deft.’s motion to compel an-

- swers to certain interrogatories, filed.

Points and authorities in reply to deft.’s. memo-

randum of law, filed.

Response of pltf. to deft.’s motion for exten-

‘sion of time within which to oppose pltf.’s

motion for preliminary injunction, filed.

June

Motion of pltf. for production of documents,

affidavit, filed.

‘Answer of pitf. to interrogatory, filed. =,

Case reassigned to Judge Bryant on 5-13-70.

Response of pltf. to motion to compel answers

to. interrogatories, filed.

Interrogatories of deft. to pltf., filed.

Opposition of deft. to motion for production

of documents, affidavit, filed.

- Recommendation sustaining and overruling in

part pltf.’s objections to interrogatories and

allowing pltf. until June 8, 1970, to respond.

Pretrial. Examiner.

Notice of deft. to take deposition of pltf., filed.

Objections of pltf. to recommendation of Pre-

trial Examiner, filed.

| Objections of pltf. to deft.’s interrogatory No.

315, filed.

Supplemental answers of pitt. to deft.’s inter-

rogatories, filed.

Certified copy of order of USCA denying mo-

tion for summary reversal and granting ap-

| pellee’s motion for summary affirmance and

affirming order of April 24, 1970, filed.

Answer of pitf. to interrogatories, filed.

Motion of pltf. for a protective order, or in

the alternative, motion to quash, filed.

_ Answer of pltf. to interrogatories. -

Opposition of deft. to pltf.’s motion for pro-

tective order, and exhibits, filed.

Response of pltf. to deft,’s opposition to

pitf.’s motion for-production of documents,

affidavits, filed. |

Motion for pltf. for protective order argued

and taken under advisement.

Motion of deft. for extension of time to

reply. to pltf.’s objections to the recom-

mendation of the Pretrial Examiner, filed.

Motion of deft. for extension of time to file

opposition to pltf.’s motion for a prelim-

inary injunction, filed.

Response of pltf. to deft.’s motion for ex-

tension of time to file reply to pltf.’s ob-

jection to recommendation of Pretrial Ex-

aminer, filed. .

Reply of deft. to pltf.’s opposition to the

recommendation of the Pretrial Examiner,

filed: | a

Motion of deft. to extend time until July 8,

1970, to answer motion of pltf. for pre-

liminary injunction granted (signed 6-22-70).

Motion of deft. to extend time to and includ- .

uig- June 23, 1970, to reply to pltf.’s ob-

jections to recommendations of Pretrial Ex-

aminer granted (signed 6-22-70) Bryant, J.

Aug. 7

Notice of pltft. to take deposition of Justin

McCarthy, filed.

Order granting motion of pltf. for protective

order (signed 6-25-70) Bryant, J. .

Motion of deft. for extension of time to file

opposition to motion for preliminary in-

junction, filed.

Motion of pltf. for production of documents

argued and granted, Bryant, J.

Request of deft. for admission of facts, filed.

Memorandum by deft., filed.

Order granting motion of pltf. for production -

of documents by Aug. 3, 1970, Bryant, J.

Response of pltf. to deft.’s request for admis-

sions, filed. | |

Notice of deft. to take depositions of Thomas

F. Kane, Hollis W. Bowers, and Edwin A.

Brewer, filed. |

Motion of deft. for extension -of time to re-

spond to motion for preliminary injunction,

filed.

Interrogatories -of pltf. to deft., filed.

Request of pltf. for admissions; Exhibits A-Z;

AA-ZZ; AAA-XXX, filed.

‘Response of pltf. to deft.’s reply to objections

to recommendation of Pretrial Examiner,

filed. ,

Oct. 2

Motion of deft. for extension of time within

which to file opposition to pltf.’s motion

for preliminary injunction; P&A, filed.

Motion of deft. for extension of time until

Sept. 15, 1970, to answer motion of pltf.

for preliminary injunction granted (signed

9-14-70), Bryant, J.

Motion of Mike Trbovich individually and as

chairman of and on behalf of Miners for

Democracy, an Unincorporated Association,

for leave to intervene, Exhibits A & B;

C-1, C-2, C-3, & D, filed.

Motion of defendant to extend time to Octo-

ber 15, 1970, to answer motion of plaintiff

for preliminary injunction printed (signed

10-6-70), Byrant, Jr.

_ Order substituting James D. Hodgson, Secre-

tary of Labor, United States Department of

Labor, for George P. Shultz as plaintiff

(signed 10-6-70), Bryant, J.

Notice of deft. to take deposition of Henry

A. Queen, filed.

Motion of deft. for extension of time within

which to file answer or otherwise object -

to pltf.’s interrogatories and request for

admissions, filed.

Memorandum of pltf.’s in opposition to mo-

tion of Mike Trbovich to intervene, filed.

Opposition of deft. to motion of Michael

Trbovich and Miners for Democracy for

' leave to intervene, filed.

aie)

Motion of deft. for extension of time to file

opposition to pltf.s motion for preliminary

injunction, filed.

Response of pltf. to deft.’s motion for an ex-

tension of time to file answers or otherwise

object of pltf.’s iriterrogatories and request

for: admissions, filed.

Notice of deft. to take depositions of Thomas

F. Kane and Edwin A. Brewer, filed.

Response of applicant to oppositions to mo-

tion to intervene, exhibit, fied.

Opposition of pltf. to motion for extension of

time within which to file opposition to plitf.’s

motion for preliminary injunction and pltf.’s

request for immediate hearing on piif.’s mo-_

tion for preliminary injunction, affidavit,

filed.

Motion of deft. -for extension of time to file

opposition to motion of pltf. for preliminary

injunction argued and denied; ‘opposition to

be filed by. October 29, 1970, Bryant, J.

Motion of Mike Trbovich, individually and as

chairman of and on behalf of Miners for

Democracy for leave to intervene, argued

and taken under advisement, Bryant, de

Transmittal sheet from USCA returning original |

record, filed. ~

Opposition of deft. to motion for orelimiitary

injunction; affidavit; Exhibits A-I, Affidavits

(22), filed. ~

Nov. |

Dec.

~ 20

Answer of deft. to pitf.” S request for admis-

sions, filed.

‘Anewer of deft. to pltf.’s request for admis-

sions, filed.

Motion of deft. for extension of time within

which to answer certain interrogatories and

certain requests for admissions, filed.

Memorandum opinion denying motion of

Mike Trbovich, individually and: as chair-

man of and on behalf of Miners for Demo-

cracy, for leave to intervene, Bryant, J.

Order denying motion of Mike Trbovich, in-

dividually and as chairman of and on behalf

of Miners for Democracy for leave to inter-

| vene, Bryant, J.

Response of pltf. to deft.’s motion for exten-

sion of time within which to answer certain

interrogatories and certain requests for ad-

missions, filed.

Answer of deft. to requests for admissions,

filed.

Response of pltf. to deft.’s opposition to mo-

tion for preliminary injunction, filed.

Order extending time for deft. to answer com-.

plaint to and including 12- il 70 (signed

11-30-70), Bryant, J.

Order extending time for deft. to answer in-

terrogatories and plft.’s request for .admis-

sions to and including 12-7-70 (signed _

11-30-70), Bryant, J. es

ae eee eee

Re PORT FY ORES S AA ire, i Sent

w »

10.

-< Order sustaining objections of pltf. to Pretrial

Examiner’s recommendations as to deft.’s

interrogatories 41, 42, 44, 45, 46, 280 and

281; overruling as to deft.’s interrogatories

294, 295, 296 and 315; and overruling’ as

to interrogatories 67, 73, 76, 81, 83, 87.

88 and 90; pltf. granted leave until 12-5- 70

to answer (signed 12-1 -70), Bryant, J.

Z Order granting motion of deft. to compel

pitf.’to answer interrogatories 70,. 74, 75,

166, 175, 177, 183, 184,.235 and 247 de-

nied as to remaining (signed 12-1-70),

Bryant, J.

4 Deposition of Thomas F. Kane for deft., filed.

4 Supplemental answers of pltf. to deft.’s inter-

rogatories 70, 74, 75, 166, 175, 177, 183,

184, 235 and 247, filed.

Answer of pitt. to deft.’s interrogatories 294,

295, 296 and 315, filed.

_ Answer of deft. to. interrogatories, filed.

7 Answer of deft. to requests for admissions,

filed.

8 Notice of appeal by intervenor Mike fijowen.

from order of 11-17-70; copy mailed to

E.L. Carey and H.F. Leathers, filed.

IS Deposition of Edwin A. Brewer for deft., filed.

ba) Deposition of Henry A. Queen for deft., filed.

iD Answer of deft. to count. one and count two °

of complaint, filed.

38, H

1S = Order extending time for deft. to answer com-

plaint to and including 12-15-70, Bryant, J.

18 Motion of deft. for order compelling depo- —

—— nent to answer questions propounded at

deposition, filed.

18 interrogatories of pltf. to deft., filed.

[Filed March 5, 1970]

COMPLAINT

Plaintiff brings this action under Titles II and IV of the

Labor-Management Reporting and Disclosure Act of 1959

(Act of September 14, 1959, 73 Stat. 519 et seq., 29

U.S.C. 401 et seq.), hereinafter referred to as the Act for

a judgment declaring the election held by the defendant

on December 9, 1969, null and void and directing the

conduct of a new election under the ‘plaintiff's supervi-

sion and for an order ‘directing and compelling the de-

fendant and its subordinate Districts to maintain records

as required by section 206 of the Act (29 U.S.C. 436).

For his First Cause of Action plaintiff alleges:

Plaintiff brings this cause of action under: Title IV of

the Labor-Management Reporting and Disclosure Act of

891959 (29 U.S.C. 401 et'seg.). |

ae an. :

Jurisdiction of this cause of action is conferred upon

the Court by section 402(b) of the Act (29 U.S.C. 482(b)).

Defendant is, and at all times relevant to this action

‘has been, an unincorporated association maintaining its -

principal office at 900 Fifteenth Street, N. W. » Washington,

D.C., within the jurisdiction of this Court.

Defendant .is, and at all times‘relevant to this action

has been, an international labor Organization engaged in

an industry affecting commerce within the meaning of

sections 3(i), 3(j), and 401¢a) of the Act (29 U.S.C. 402

(i), 402G) and 481(a)).

_Vv

Defendant, purporting to aét pursuant to and in accord-

_ ance with the provisions of its Constitution, held an elec- —

tion of its International officers among its members in

good standing on December 9, 1969. This election was

subject to the provisions of Title IV of the Act (29 U.S.C.

481 et seq.).

(ay By letter dated December 18, 1969, Joseph A.

Yablonski, a member in good standing of defendant union

filed a protest with defendant’s International Executive

Board, alleging violations of Title IV of the Act in the ©

conduct of defendant’s December 9, 1969 election of of-

ficers.

(b) By letter dated January. 8, 1970, addressed to

‘the plaintiff, Defendant through its General Counsel re-

quested that the plaintiff conduct an immediate investiga-

tion of the December 9, 1969 election of International of-

ficers pursuant to Title IV of the Act, dispensing with

BEF PARLOR ALOIS Ree Da FRA AS Fite OR EGLO LAE AOD. LTEGANEED striae 2 _—

- internal exhaustion of remedies procgdures under defend- —

ant union’s Constitution. Whereupon, plaintiff initiated

an investigation. o

Trbovich, a member in good standing of defendant union,

through his counsel, filett a complaint with the Secretary

of Labor alleging violations of the Act in the conduct of

défendant’s December 9, 1969 election of International of-

ficers. |

Vil

Pursuant to section 601 and in accordance with section

402(b) of the Act (29 U.S.C. section 521, 482(b)), plain-

tiff investigated said complaint and as a result of the

facts shown by the investigation, found probable cause to

believe that violations of Title IV of the ‘Act had occurred

in the conduct of defendant’s election and had not been

remedied at the time of the filing of this action.

”~

VIII

Plaintiff alleges that in the conduct of the aforesaid elec-

tion, defendant violated the provisions of Title IV of the

Act (29 U.S.C. 401, et seq.) as follows: ®

(a) Section 401(a) of the Act (29 U.S.C. 481(a))

was violated in that defendant union failed to elect its

international officers by secret ballot among the membérs

in good standing in that many members were required or

_ permitted: to cast their ballots in such a manner that the

member voting could be identified with the choice ex-

pressed.

_(b) Section 401(c) of the Act (29 U.S.C. 481(c))

was violated in that .

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defendant union failed to- provide ade-

quate. safeguards to insure a fair elec-

tion; including permitting campaigning

at the polls; : °

denied candidates the right to have ob-

Servers at polling places and at the’ count-

ing of ballots

was violated in that

(i)

(ii)

(iii)

Defendant failed to conduct its election

in accordance with its Constitution, in-

cluding the failure of many local unions

to elect tellers and to hold a membership

meeting to set the time and place of the

election;

Members were denied the right to vote.

for or otherwise support the candidate or

candidates of their choice without being _

subject to penalty, discipline, or improper

interference or reprisal.

Members were denied the right to vote,

' in that elections were not conducted in

some locals.

(d) Section 401(g) of the Act (29 U, S.C. 481(g))

was violated in that defendant union used moneys received .

by it by way of dues, assessments, or similar levy, to

promote the candidacy of its incumben® International of-

ficers, including but not limited to use of defendant’s of-

ficial publication, district offices, property and other fa-

cilities.

The: violations of section 401 of the Act (29 U. S.C.

481) found and. alleged above may have affected the out-

come of the aforesaid election.

For his Second Cause of Action plaintiff alleges:

* Uy

_ Plaintiff brings this cause of action under Title II of. —

the Act (29 U.S.C. 431, et seq.). - °

Jurisdiction of this cause of action is conferred upon

the Court by section 210 of the Act (29 U.S.C. 440).

Paragraphs III and IV of this complaint relating to the

First Cause of Action are hereby incorporated by refer-

ence into this Cause of Action.

, .

- IV | ; | . ”

Defendant, is and at all times relevant to this action

_ has been, gubject to the reporting provisions of Title II .

of the Act (29 U.S.C, 431 et seq.).

Defendant has failed and is still failing to maintain rec-

ords and to require its subordinate Districts to maintain .

records on matters required td be ‘Teported under Title If »

of the Act (29 U.S.C: 431 et seq.), which provide in suf-

ficient detail the necessary basic information and data

from which documents filed with the plaintiff may be

verified, -éxplained or clarified, and checked for accuracy ©

’

“s~

‘US. Department of

and completeness, as required by section 106 of the Act

29 U. S.C. 436).

WHEREFORE, the plaintiff prays for judgment:

(a) declaring the election held by defendant union to

be null and void;

(b) directing the conduct of a new election for all

constitutional officers under the supervision of the plain-

tiff; |

tain records, as required by section 206 vd the Act (29

U.S.C. 436);

(d) enjoining the defendant, its cinbers, members,

agents, servants, employees, attorneys and all persons in

active concert and participation with them, pending final

determination of the second cause of action of this com-

plaint, from violating the provisions of Section 206 of the

Act (29 U.S.C. 436);

(e). permanently and during the pendency of this ac-

tion enjoining and restraining defendant, and its agents,

servants, employees, attorneys and all persons acting, or

claiming to act in their behalf and interest, from violating

‘the provisions of section 206 of the Act (29 U.S.C. 220);

(f) awarding costs of this action; and

(g) granting such other relief as may be appropriate.

LAURENCE H. SILBERMAN -_/s/__ William D. Ruckelshaus

Solicitor of Labor WILLIAM D. RUCKELSHAUS

GEORGE T. AVERY Assistant Attorney General

Associate Solicitor | /s/ Thomas C. Flannery —

United States Attorney

Labor /s/ Harland F. Leathers

‘’ HARLAND F. LEATHERS

Of Counsel Attorney, Department of Justice

Attorneys for Plaintiff

[Filed March 5, 1970].

_ MOTION FOR PRELIMINARY INJUNCTION

Plaintiff moves the Court for a preliminary injunction in

' the above-entitled action enjoining the defendant, United

Mine Workers of America, its officers, members, agents,

servants, employees, attorneys, and all persons in active

concert and participation with it, from expending or per-

mitting the expenditure of furfds of the International or

of its subordinate Districts without maintaining records

on the matters required to be reported under Title II ‘of

the Labor-Management Reporting and Disclosure Act of

1959 (29 U.S.C. 401 et seq.) which will provide in suf-

ficient detail the necessary basic information and data

from which the documents filed with the Secretary may

be verified, explained or clarified, and checked for accu-

racy and completeness, such records to include specific-

ally, but without limitation, receipts, vouchers, worksheets,

and applicable resolutions, as required by section 206 of

the Labor-Management Reporting and Disclosure Act of

1959 (29 U.S.C. 436).

The issuance of such a preliminary ‘injunction is re-

quested on the grounds that:

(1) defendant has performed: and will continue

* to perform the acts referred to;-

(2) such action by defendant will result in ir-

reparable injury, loss and damage to plaintiff, by impeding

his continuing investigation pursuant to section 601 of the

Labor-Management Reporting: and Disclosure Act of 1959.

(29 U.S.C. 521, as more particularly appears from the af-

fidavits of Thomas F. Kane, Hollis W. Bowers, and Henry

ea SP Per ee : Ria SSS ae A ATURE I eas! Tt

e s

ie ;

; ra

A. Queen, attached to plaintiff's motion for temporary re-

straining order; and

(3) the issuance of a preliminary injunction herein

will not cause inconvenience or loss to defendant but will

. prevent irreparable injury to. plaintiff.

LAURENCE H. SILBERMAN /s/ William D. Ruckelshaus

Solicitor of Labor WILLIAM D. RUCKELSHAUS

GEORGE T. AVERY Assistant Attorney General

Associate Solicitor /s/ Thomas C. Flarinery

United States Attorney

EDWIN S. HOPSON

ROGER D. MARSHALL -_._/s/_— Harland F. Leathers

HARLAND F. LEATHERS

Attorneys ~ Attorney» Department of Justice

U.S. Department of Labor Attorneys for Plaintiff

Of Counsel .

[Filed March 5, 1970] —

AFFIDAVIT 8

STATE OF MARYLAND ~~. )

) SS:

COUNTY OF MONTGOMERY +)

Thomas F. Kane, being duly sworn, deposes and says:

1. Iam a Special Investigator, employed by the Branch

of Auditing and Accounting Standards, Division of Reports,

United States Department of Labor.

2. In the course of my official duties, I examined the

records of the United Mine Workers of America (UMWA),

19 -

900 15th Street, N.W., Washington, D.C. concerning the-

granting of loans by the UMWA to its subordinate Dis-

tricts. The records indicated that loans were made to sub-

ordinate Districts during the years 1967, 1968 and 1969

. In the following amounts: |

1967 $1 ,662,390.00

1968 —— -$1,658,922.20

1969 $2,107,500.00

The amount of the loans made to each of the Districts

in each of these three years is set forth ia Exhibit A at-

tached hereto.

3. My examination disclosed that tkese loans were

_made on the basis of requests from District officials and

the request in each case indicated that the funds were to

be used for organization, administration or other union ex-

penses, without further specification. .

4. The records disclosed that when a loan was re-

"quested, International President W.A. Boyle issued instruc-

tions to International Secretary-Treasurer John Owens to

issue a check in the amount requested and remit the funds

to the District. Checks issued to make such’loans were

either deposited in the bank to the credit of the District

or were cashed by an official of the District requesting the

loan.

5. My examination of the records of the UMWA Inter-

national did not disclose any documentary evidence con-

cerning the disposition of these loaned funds.

» jae

6. Each District submits to the International a monthly

report summarizing the receipt and disbursement of funds

by the District. Nothing in the monthly reports serves to

COUNTY OF MONTGOMERY

Wh Pei Sa

verify that funds received by way of loan from the Inter-

national were used for the purpose for which the loan was

requested. Nor is there any other documentary evidence

submitted by the Districts to the International indicating

the disposition of the loaned funds.

/s/ Thomas F. Kane

Thomas F. Kane

[Filed March 5, 1970]

AFFIDAVIT

STATE OF MARYLAND )

) SS:

)

Henry A. Queen, being duly sworn, deposes and says:

L. # am the Chief, Branch of Elections and Trustee-

ships, Office of Labor Management and Welfare-Pension

Reports, United States Department of Labor, Washington,

D.C.

2. In the course of my official duties, I supervised

the investigation which was conducted of the election of

International officers held by the United Mine Workers of

America in 1969.

3. In connection with the aforesaid investigation, the

financial records maintained in the offices of the subor-

dinate Districts of the United Mine Workers of America

were examined in order to determine whether funds of

a labor organization had been expended to promote the

candidacy of any person in the election in violation of

section 401(g) of the Labor-Management Reporting and

Disclosure Act of 1959.

4. The examination of such records disclosed numerous

instances in which the records were not sufficiently main-

tained in order to permit a cetermination to be made

whether funds had been expended: in violation of section

401(g).

5. The financial ‘records of District 2 disclosed that

seven individuals described as organizers had been added

to the payroll during the period between June 25 and

July 1, 1969, and were still on the payroll at the time

of the investigation. Checks were issued to these organ-

izers for “organizing expenses” without any supporting

vouchers or receipts to substantiate the purpose for which

such expenditures were actually made.

6. The investigation disclosed that in February and

March 1969, Secretary-Treasurer John Seddon prepared

checks to each of four Executive Board members for Dis-

trict 5. These checks were cashed and the proceeds re-

turned to Seddon, who states that he placed them in his

_ safe deposit box in the Union National Bank, Pittsburgh,

Pennsylvania. Thereafter, on July 14, 1969, Sedden de-

posited a sum equal to the total of the four checks

($8,560) in the checking account of District 5 in the Na-

tional Bank of Washington, Washington, D.C. The secords

do not indicate what disposition was mia of these funds

in the interim.

The records of District 5 disclosed that 19 presidents

of local unions within the District participated in a six-week

“organizing” campaign in Butler and Mercer Counties, Penn-

sylvania. Each participant received from District funds ap-

proximately $1,650 gross salary and expenses for the ’six-

week period. The records of the District do not contain

any receipts or other documentary evidence supporting the

_ payments to these officers for expenses. Ten of. the same

19 local union presidents made a subsequent six-week trip

into the same areas, and were reimbursed at approximately

the same rate, again without any documentary support of

their expenses.

7. The financial records of District 12 disclosed that

District Board member Jesse M. Ballard was reimbursed

for mileage and expenses during a 5-day period in which

he was hospitalized. In the same District, two other Dis- '

trict members admitted that the mileage for which they

claimed reimbursement consisted of ‘‘short miles.”

8. Examination of the records of District 19 disclosed

that “organizing” payments totaling $19,970 were made to

23 members. The District records disclosed no documenta-

tion of any expenses incurred by these 23 members for

which reimbursement could properly be made.

9. Investigation of the financial records for District 28

disclosed checks totaling $3,180.84 were paid to union

members to reimburse them for lost time and expenses in

connection with a trip to Pittsburgh, Pennsylvania, and

Washington, D.C. The payment was charged to organizing

expenses. Subsequently, an International auditor discov-

ered that the trip had been made for campaign purposes,

and the money was then repaid to the District from funds

of the campaign committee supporting the reelection of

the incumbent officers. Another check in the amount of

$360 had been made payable to an International Repre-

sentative in connection with the same trip, but this pay- .

_ ment was undetected and no restitution was made. -

The investigation disclosed that checks were drawn for

advances and reimbursement of expenses to officials of |

‘District 28 without any supporting vouchers or documen- .

tations. On December.31, 1969; a check was drawn in

the amount of $5,000, payable to District Representative

E. G. Gilbert upon the basis of his representation that the

money was for organizing expense, without further itemi-

PELOTON TAILOR eat a

zation or documentation. 4

10. In District 29, examination of the financial records 4

disclosed that between 1961 and 1968 the District received a

$30,000 from Local 7086 and $16,000 from Local 5997, f

allegedly for expenses previously paid by the District, but '

without any supporting records in the form of receipts or E

expense vouchers. In 1969, District 29 received an addi- é

tional $17,000 from Local 7086 and $13,000 from Local

5996, again without any specific information or documenta-

tion concerming the purpose of the payments.

PETRI SLI Se WA oe

11. The financial records of District 31 disclosed that

between April 15, 1969 and October 10, 1969, seven checks

totaling $9,700 were drawn to the order of the First Na-

tional Bank, and one check for $500 was drawn to the or-

der of L. Clyde Riley, who is the Secretary-Treasurer of _

District 31, and were cashed. There was no documentation

indicating the disposition of these funds.

/s/ Henry A: Queen

Henry A. Queen

* * * * *

OLIN INTL I NN ISIC LUNARE BSR Ee en IF HLM Say 8 Me remanence

[Filed March 5, 1970]

AFFIDAVIT

STATE OF MARYLAND oy .

COUNTY OF MONTGOMERY ~

Hollis W. Bowers, being duly sworn, deposes and says:

I am employed as a special investigator by the Branch

ot Special Investigation, Division of Cgmpliance Operations,

Office of Labor-Management and Welfare-Pension Reports,

United States Department of Labor.

In the course of my official duties, I participated in a

financial investigation of the United Mine Workers of Amer-

‘ica (UMWA), 900 15th Street, N.W., Washington, D.C.

During that financial investigation, I examined expense

accounts of the UMWA and determined that the UMWA

has failed to require and direct its officers and employees

to maintain adequate records to support disbursements for

expenses, said records being necessary to determine the

validity of the disbursements for expenses. My examina-

tion of the records with respect to disbursements to of-

ficers and employees for expenses indicated that vouchers

were submitted and paid without any specification of

mileage rates, and without: any documentation of hotel

and restaurant bills or other bills for which reimbursement

was claimed.

My examination of the financial records:of the UMWA

concentrated primarily on 1967 and 1968 records. I also

examined some of the records pertaining to 1969. The

records for 1969 which I examined indicated that the

UMWA has continued to make disbursements for expenses

without adequate supporting records.

I was informed by responsible officers of the UMWA

that the UMWA had not, prior to January 1, 1970, issued

instructions to its officers and employees concerning the

. submission of proper itemization and documentation of ex-

pense vouchers. I ascertained from a review of the minutes

of the International that in January 1970, the International

Executive Board issued instructions that mileage would be

reimbursed at the rate of 12 cents per mile.

I have been informed by responsible officials of the

UMWA that the UMWA has never undertaken an audit of

expenses to determine the validity of the expenses claimed.

I have also examined the UMWA labor. organization

financial reports filed on United States Department of Labor

- Form LM-2 for the fiscal years ended December 31, 1967

and December 31, 1968. The LM-2 filed,for 1967 shows

‘$864,479.00 disbursed to officers and employees as expenses.

The LM-2 filed for 1968 shows $1,070,930 disbursed to of-

ficers and employees as expenses. The LM-2 for 1969 has

not yet been filed.-

/s/ Hollis W. Bowers

Hollis W. Bowers —

* * * * *

Ee TS ee a RE Oe RN Ree eee TA

Se ~

IPI SCANE MM TRIS ORRIN NE ACR

LAaM Spay)

TREE TM

Pest DRM

8 NaC err eae ime tee RTNICIFED ae onerANaRe my I

[Filed March 5, 1970]

[EXHIBIT A TO MOTION FOR PRELIMINARY

INJUNCTION]

; ;

I | UMWA LOANS ,

| _ TO DISTRICTS DURING YEAR 1967

| DISTRICT | 7 AMOUNT

| i] $80,000

| } 2 330,000

1 7 3 10,000

, 4 35,000

5 140,000

| 6 5,000

i 7 25,000

i 9 60,000

i, 10 1,000

ii 11 25,000

_ 12 15,000

it 15 40,500

19 384,290

1 20 25,000

i 21 2,500

' 23 10,000

i 26 5,500

i 27 10,000

28 125,000

30 273,600

31 60,000

$ 1,662,390

26a

[Filed March 5,- 1970]

UMWA LOANS

TO DISTRICTS DURING YEAR 1968

DISTRICT

OANA Nn Ph WPto —

AMOUNT

$72,000

315,000

20,000

50,000

180,000

30,000

83,300

4,000 ‘

20,000 |

15,000

35,000

340,599.20

30,000 |

- $,000 \

10,000

5,000

2,000

17,000

50,000

264,023

81,000

$1,658,922.20 .

SEEN TIN EER RATT APIS NCS RTI FOP re aI 5 ec TEE

a ee BSG A

[Filed March 5, 1970]

UMWA LOANS

TO DISTRICTS DURING YEAR 1969

DISTRICT

Orn nA Wh W tO’ —

AMOUNT

$20,000

480,000 |

20,000

120,000

360,000

115,000

5,000

40,000

13,000

20,000

. 70,009

5,000

30,000

40,000

183,000

25,000

10,500

40,000

150,000:

109,000

252,000

$2,107,500

caeeeen vipieaeatmmmmnantinas alias

[Filed October 2, .1970]

MOTION OF MIKE TRBOVICH, INDIVIDUALLY

AND AS CHAIRMAN OF AND ON BEHALE

OF MINERS FOR DEMOCRACY, AN UNIN-

CORPORATED ASSOCIATION, FOR LEAVE TO

INTERVENE AS A MATTER OF RIGHT UNDER

RULE 24(a) F.R.C.P., OR, IN THE

. ALTERNATIVE, FOR PERMISSION TO .

INTERVENE UNDER RULE 24(b) F.R.CP.

Come now Rauh & Silard, attorneys for Mike Trboyich,

and move this Court for leave to intervene in the above-

entitled action and to file his Complaint attached hereto.

as Exhibit A. In support of this Motion, applicant shows

as follows:.

I. WITH RESPECT TO THE FIRST

CAUSE OF ACTION

d. On December 9, 1969, there was held an election

of International Officers in the United Mine Workers of

_ America (hereinafter referred to as “UMWA”).

2. On January 20, 1970, Mike Trbovich; a member in

good standing of the UMWA, filed a complaint with the

Secretary of Labor, challenging the results and conduct of

the election. (A copy of that complaint is attached hereto

as Exhibit A.) See also paragraph VI (c) of the Secre-

tary’s complaint.

3. On March 5, 1970, the Secretary of Labor filed the

Complaint in the instant proceeding, seeking an order “de-

claring the election held by the defendant to be null and

void’’ and “directing the conduct of :a new election for all

constitutional officers under the supervision of the plaintiff.”

4. On April 1, 1970, in Clarksville, Pennsylvania, the

organization Miners for Democracy was formed for the pur-

pose of bringing about reform in the -UMWA; its goals in-

clude the holding of democratic elections and. the restora-

tion of sound fiscal management of the UMWA’s assets.

5. As an individual UMWA member and as National

Chairman of Miners for Democracy, applicant has a direct

and substantial interest in the subject matter of this ac-

tion and is so situated that the disposition of this action

and the terms of any order entered will as a practical mat-

ter impair or impede his ability to protect that interest.

6. Applicant’s interest is not adequately represented by

the parties to this action. (See letter to Senator Harrison

A. Williams, Exhibit C-1; letter from Senator Williams to

Senate Labor Subcommittee members, Exhibit C-2: and a

“memorandum prepared and distributed by the Department

of Labor, EenIDIE C-3.)

JI. WITH RESPECT TO THE SECOND

CAUSE OF ACTION:

7. On December 4, 1969, applicant herein, Mike

Trbovich, and eleven other members of ‘the UMWA filed a

Complaint against defendant herein, UMWA, and its three

principal International Officers, W.A. Boyle, George J. Tit-

ler, and John Owens, ‘‘For: an accounting, restitution and

‘ damages.” The Complaint alleges that “the individual de-

fendants have violated the fiduciary duties set forth in Sec-

tion S5Ol(a) of: the [Labor-Management Reporting and Dis-

closure Act of 1959].” That proceeding (Civil Action No.

3436-69) is presently pending before this Court. A copy

of the Complaint therein is attached hereto as Exhibit. D.

8. In Cause II of the instant Complaint the plaintiff

Secretary of Labor seeks an order “directing and compel-

ling the defendant to maintain [financial and.other] rec-

ords, as required by Section 206 of [the Labor-Manage-

ment Reporting and Disclosure Act] and “enjoining the

defendant, its officers, members, agents, servants, employ-

ees, attorneys and all other persons in active concert...

from violating the provisions of 206 and permanently and

during the pendency of this action restraining defendants

and its agents .. . from violating the provisions of 206.” |

9. As an individial UMWA member and as National

Chairman of Miners for Democracy, applicant has a direct

and substantial interest in the subject matter of this action

and is so situated that the disposition of this action and ~

the terms of any order entered will as a practical matter

impair or impede his ability to protect that interest.

10. Applicant’s interest is not adequately represented

by the parties to this action. (See Exhibit C-3.)

11. There are common questions of both law and fact

in the intervenor’s complaint (Exhibit A) and in both of

the causes of action in the original Complaint filed in

this matter by the Secretary of Labor on March 5, 1970.

WHEREFORE, Mike. Trbovich prays this Court grant

_him leave to intervene in both causes of action in this

“proceeding as a matter of right under 24(a) of the Fed- ©

eral Rules of Civil Procedure, or, in the alternative, that

he be permitted to intervene under Rule 24(b) of the

Federal Rules.

Respectfully submitted,

Joseph L. Rauh, Jr.

John Silard

Rauh & Silard Elliott: Licht

1001-Connecticut Avenue,-N.W. . a = Feldman

Counsel for Intervenor Joseph A. Yablonski

| EXHIBIT A TO MOTION FOR LEAVE TO INTERVENE |

COMPLAINT OF INTERVENOR

Come now Rauh & Silard, attorneys for the Intervenor.

Mike Trbovich, and file this Complaint under Titles I, II,

IV, V, VI of the Labor-Management Reporting and Dis-

closure Act of 1959 (hereinafter referred to as “LMRDA”)

29 U.S.C. 401, et seg. .

1. Intervenor-Plaintiff, Mike Trbovich, whose address

is R.D. No. 1, Box 175, Clarksville, Pennsylvania, is a mem-

ber in good standing of; the United Mine Workers of Amer-

ica (hereinafter referred \to’ as “‘UMWA’’) and its Local

Union 6330 and is the National Chairman of Miners for

Democracy, an-‘unincorporated association formed on April

1, 1970, to bring about reform in ‘the UMWA, and, in par-

ticular, to democratize its election procedures and to pro-

mote sound fiscal management of the UMWA’s assets.

2. Intervenor adopts and incorporates herein by refer- _

ence all of paragraphs I, II, III, IV, V, VI, VII, VIII, and

IX of the First Cause of Action in the original Complaint

herein filed by the Secretary of Labor on March 5, 1970.

3. In addition to the jurisdictional allegations contained

in the original Complaint, this Court also has jurisdiction of

this matter under Section 102 of LMRDA (29 U.S.C. 412),

_ Section 201 of LMRDA (29 U.S.C: 431), Section 501 of

_ LMRDA (29 U.S.C. 501) and under the District of Colum-

bia Code, Section 11-521 (1967 ed.).

4. In addition, Intervenor asserts that the following

. allegation should be inserted in the Complaint in paragraph

VIII (c):

(iv) Thousands of members were required to

vote in the more than 500 local unions of

the UMWA which exist in violation of the

UMWA Constitution which-practice may have

influenced the outcome of the election; —

Intervenor further asserts that the following al-

legation should be inserted in the First Cause of Action

in the Complaint as VIII (e):

(e) Section 401l(e) of the LMRDA (29 U.S.C.

481(e)) was violated: in that the President of

the UMWA improperly interfered with the

Tights of UMWA members to vote for the

candidates of their choice when, during the

- election campaign period, by trick or fraud

or by collusion with the employers’ represen- |

tative on the UMWA (Bituminous) Welfare —

and Retirement Fund, he engineered a $30,-

000,000 annual increase in pensions to retired

miners which increase was designed and in-

tended to influence and may have influenced

the votes of 70,000 pensioned union members

and, therefore, the outcome of the election and

which jeopardized the continued solvency of

the Fund.

Intervenor adopts and incorporates herein by ref-

erence all of paragraphs I, II, III, IV, and V of the Sec-

ond Cause of Action in the original Complaint filed ‘by

the Secretary of Labor on March 5, 1970.

Intervenor, in addition, asserts that the following

allegation should be inserted as an additional paragraph

in the Second Cause of Action, paragraph VII:

Defendant has failed and continues to fail

to provide and make available to its mem- .

bers adequate information about and record |

of its finances, including its books, records

and accounts which it is required to do un- ft

der Section 201 of the Act (29 U.S.C. 431). 2

and under Article IX, Section 32 of the UM- .

WA Constitution.

8. Intervenor adopts and incorporates herein by ref-

erence all of the paragraphs in the prayer for relief con-

tained in the original Complaint filed by the Peenerary of t

Labor on March 5, 1970.

9. - In addition to the matters contained in the prayer

for relief in the original Complaint, Intervenor includes

the following paragraphs:

OD NITY TTA EA SS CRY OR RE ehE tog

PO .

(f) directing and compelling the defendant

to immediately disband all local unions

which do not comply with the requirements

of the UMWA’s Constitution, and to require :

the transfer of all members of such locals ;

to local unions which exist in compliance

with the UMWA Constitution;

(g) appointing and installing a Board of Mon-

itors to oversee and approve the maintenance i

of books, records and accounts and the receipts .

and expenditure of funds and preservation of

the UMWA’s assets until such time as the

Court believes that the UMWA has ‘instituted

and will maintain proper record-keeping and

accounting procedures and that the assets of

the UMWA are not in danger of being dissi-

pated;

«x

a ian WEN ua Ln ta stat ate acee Pear Ree

(h) rule that defendant's President breached

the fiduciary duty he owed to all UMWA

members by raising bituminous pensions in

order to benefit himself and other incum-

bent International Officers and order defend-

ant to publish this ruling in a manner ade-

quate to dissipate the effect of this increase

on the pensioned voters:

(i) establish rules for the conduct of a new

election and enforce such rules for the new

election or appoint a panel, to be paid out

of UMWA funds, to establish and enforce

fair election rules for such election;

(j) grant to the intervenor reasonable attor- ‘

neys’ fees and costs; .

10. Paragraphs (f) and (g) of the original Complaint .

filed-by the Secretary of Labor on March 5, 1970, should), |

respectively, be renamed paragraphs (k) and (1).

Respectfully submitted,

> Joseph L. Rauh, Jr.

John Silard |

Elliott Lichtman

Clarice R. Feldman

Joseph A. Yablonski

Rauh & Silard |

1001 Connecticut Avenue, N.W.

Attorneys for the Intervenor

[EXHIBIT B TO MOTION FOR LEAVE TO INTERVENE]

JANUARY 20, 1970

Sent — 3:37 p.m.

THE HONORABLE GEORGE P. SHULTZ Ep

SECRETARY OF LABOR

WASHINGTON, D.C.

MIKE TRBOVICH, VICE PRESIDENT OF LOCAL -UNION

6330 OF UNITED MINE WORKERS AND CAMPAIGN

CHAIRMAN FOR YABLONSKI-BROWN TICKET, HAS

ASKED ME TO FORWARD. THIS. MESSAGE TO YOU

QUOTE I HEREBY CHALLENGE THE DECEMBER

9 UMWA ELECTION FOR REASONS STATED IN YAB-

BLONSKI LETTER TO INTERNATIONAL TELLERS

AND APPENDICES ATTACHED THERETO AND IN

RAUH LETTER TO YOU DATED JANUARY 13TH.’ I

URGENTLY REQUEST A DEPARTMENT OF LABOR

‘INVESTIGATION OF ELECTION ‘BASED ON THOSE 4

LETTERS. MASSIVE VIOLATIONS OF LAW AND 3

UMWA CONSTITUTION COMMITTED BY UMWA OFFI-

CERS AND THOSE WORKING WITH THEM CLEARLY

AFFECTED RESULTS OF ELECTION. NEW NOMINA-

TIONS AND NEW ELECTIONS ARE ESSENTIAL TO A

CLEAN-UP OF THIS :UNION UNQUOTE.

JOSEPH L. RAUH. JR.

MORRIE Ivana nisin ee nenernsre seanicsec mare coe scesnaotept

Soe Qa Le ren

Sea ian Wise ert

eee BOR. tt pe EDL NA tah C8 RO NTI BLING can AE lam,

[EXHIBIT C-1 TO MOTION FOR LEAVE

TO INTERVENE]

May 26, 1970

The Honorable Harrison Williams

Chairman, Senate Labor Subcommittee

Suite 4320, Senate Office Building

Washington, D.C. 20510

Dear Senator Williams:

On May 4, 1970, the Secretary of Labor, George P.

Shultz, his Assistant, Willie J. Usery, and his Solicitor,

Laurence H. Silberman, testified before your subcommit-

tee in connection with the Department’s activities con-

cerning the United Mine Workers of America, with par-

ticular emphasis on the recent UMWA election. That

same day we requested by. telegram and telephone the

Opportunity to respond and rebut the guilt-ridden and

baseless statements made by the Secretary and his asso-

ciates. We were denied this opportunity." Having been.

denied the right to respond Promptly in person, we wish

to insert in the record our review of the Secretary's state-

ment and indicate for the subcommittee its most serious

inaccuracies. .

. Refusal to conduct pre-election investigation. Let us

begin with the Secretary’s continued insistence that the

Labor Department’s policy of refusing to conduct an in--

vestigation during the course of an-election is a proper

one. That policy flies in the face of the Secretary’s ad-

" missions concerning the “broad language of section 601”

(p. 2) and the decisions of “two courts of appeal [that]

have held that the broad investigatory authority undér

cS re

Title VI is not limited by the express procedural require-

. ments of section 402” (p. 4). These damaging admissions.

conclusively establish that the Secretary’s refusal to investi-

gate in the pre-election period had no hasis in the law

(LMRDA) or in the court decisions interpreting it.

Indeed, the primary justification for the Secretary's in-

action is his own previous inaction and that of his pre-

decessors since 1959, The other asserted reason, stnpped

of the obfuscating rh@toric, is that to enforce the law —

to conduct an investigation — might injure or harm the

party accused of breaking the law. The Secretary’s fear

that an investigation might help or hurt candidates is no

reason to decline to carry out his responsibilities. The

emphasis should be placed on screening the allegations

and charges to discatd the baseless and frivolous ones,

and to investigate those with merit: A policy against pre-

election investigation might make. some sense in the ordi-

nary case; an inflexible rule against pre-election investiga-

tion in the face of the UMWA bosses’ massive violations

of law makes no sense at all. The Secretary's investigatory

presence would insure greater compliance with the law and

no accusatory proceedings would be required until after the :

returns are in. Thus, the Secretary’s fear that his action

“would almost surely influence the outcome of the elec-

tion” (p. 6) is: a hollow one. It is simply a boogie man

erected to justify a bureaucratic indifference that contrib-

uted to the murder of the Yablonski family. Contrary to

the Secretary’s suggestion that the Act ‘must be amended

to permit pre-election investigations, it is clear from the

foregoing and the general intent of the legislation to pro-

tect union members’ rights and promote union democracy,

that the Act need not be amended so much as the Secre-—

tary must be directed to perform the responsibilities Con-

gress imposed on his office. id

a | >

SeMRD

In’ dealing with his inaction in the UMWA election case,

the Secretary states that “the only. ‘purpose: of such a pre-

election investigation in this case would have been to pub-

licize the existence of violations of the statute” (p. 6).

But that was not the reason we requested an investigation:

we have said since the outset that-a federal presence would

have prevented further violence and other daily violations

of the law. Only through the most tortured reasoning

could the Secretary arrive at the conclusion that because

the UMWA had broken the tgw — and that Mr. Yablonski’s

pre-election suits conclusively demonstrated this) — Mr..

Yablonski’s requests for an investigation should not have

been heeded. The Subcommittee should have recognized

this as sophistry, but the Secretary was not even ques-

tioned on this matter.

Violence. The discussion of violence during the cam-

paign further demonstrates the Seécretary’s lack of candor.

On February 21, 1970, we wrote to the Secretary describ-

ing in detail much of the violence that Occurred during

the course of the campaign. The letter ended with the

following request:

“We know we cannot affect your decision,

but we do have the right as American citi-

zens to demand answers to our verified evi- —

dence of violations of law. . We ask that you

give us an answer point by point to each il-

legality we have charged. We ask you to take

each such illegality separately and tell the

public whether it was proven, erroneous, or

not investigated.” |

To this day, we have never received a seriatum disposition,

of our verified. charges. ‘Ve have yet to be informed of

the results of any inves'igations or even to be informed

. ‘\

‘ . \

that there were any investigations on most of these inci-

dents, despite the Secretary’s assertion that “Le] very one

of those allegations was investigated” (p. 7).

The jestimony on the_two ineidents of violence which -

were allegedly investigated is illuminating. Contempo-

raneous with the events in Shenandoah, the Shenandoah

Evening Herald carried a banner headline, pictures and a

very descriptive article and editorial relating to the mah-

ner and fashion that the meeting was broken up. Subse-

quently, we obtained affidavits which corroborated the

impartial newsmen’ s story. In sum, they disclose that a

union meeting of union members supporting the candida-

cies of Yablonski and Brown was scheduled for the She-

nandoah High School at 3:00 o’clock p.m. on June a,

1969. Before the meeting started, International and Dis-

trict representatives, including John Karlavage and Boley

Overa, led ‘a-group of shouting, placard waving individuals

into the school auditorium. They prevented the meeting

from being held and threatened the old pensioned miners

and ordered them to go home. The attached newspaper

story and affidavits speak for themselves. The Secretary’s

indication. that the law permits this type of conduct is so

incredible that it should easily’ have been discredited by

- the committee.

No one paragraph in the Secretary’ S 22 page statement

more clearly illustrates the manner in which the federal

agencies combine not to enforce the law than the one on

_ page eight where the Secretary describes the events at

Springfield, Illinois on June 28, 1969 where Mr. Yablonski

was brutally assaulted and knocked unconscious. Within

a day after the incident the Justice Department through

Henry Peterson was given a factual summary of what had

occurred. In another day or so, the names of eight people

RED ED BN ee te

who attended the meeting were also given to him. Neither

Mr. Yablonski (to our knowledge) nor anyone else was ever

interviewed at that time concerning this incident.

On December 23rd, Mr. Peterson informed Mr. Rauh

that the F.B.I. had been unable to determine who the as-

- sailant was, and: that the matter had been dropped. Secre-

tary Shultz, nevertheless, testified that the assailant had

been identified, that he stated that he had struck Mr. Yab-

lonski on the chin from the front* and “that it was strictly a

‘spontaneous action and that he was not paid or otherwise in-

duced to commit the assault...” (p. 8). A phone call

to the Department of Justice after the Shultz testimony

revealed that the assailant had indeed been identified but

not until the investigation was reopened following the mur-

ders.

But neither Mr. Rauh nor anyone in the Yablonski fa-

mily or anyone ‘connected with the Yablonski campaign

has ever been interviewed or consulted during this investi-

gation. Apparently the Labor Department feels compelled

to accept the explanations of the perpetrators of union

crime without reservation. The testimony of Messrs. Usery |

and Silberman on this point are illustrative of their utter

refusal to discuss this matter with Mr. Yablonski, his sons

or campaign aides. The Justice Department was initially

informed that the Springfield meeting -had been set up by

. The F.B.I. interviewed Emil Sposato, M.D., the doctor who ex-

amined Mr. Yablonski, the night of the incident. But neither the

F.B.I. nor Labor Department ever interviewed or asked to see the

report records and notes of the treating physician, Robert Schwartz,

M.D. Doctor Schwartz has unequivocally stated that Mr. Yablonski

was struck on the back’ of the neck. Nor has the treating neurolo-

gist, Doctor Stahl, ever been interviewed to our knowledge.

a Mr. George Morris, Jr., who was erroneously believed to

be a leader of the anti-Boyle forces in Hlinois. Only a

dozen or so local union officials attended the meeting in a

hotel room at the State House Inn. It was not a ‘rally’

(as Mr. Usery stated, p. 666), but was a preliminary, intro-

ductory session with a handful of local leaders. Though

Mr. Yablonski was led to believe those in attendance fav-

ored his candidacy, he. was not warmly received. Thus,

when Mr. Usery states the group was ‘Yablonski support-

s’’, he is again wrong. Finally, his statement about the

substance of the discussion — voting rights of pensioners —

is drawn directly from a Tony Boyle press release. Mr.

Yablonski never at any time, let alone in the company of

a dozen hostile Boyle supporters, maintained that pensioners

should not vote. Either Boyle propounded this lie for the

assailant which the Secretary readily accepted, or Mr. Boyle

has access to the Department’s investigatory files. Never-

theless, even the contrived set of facts described by Shultz

and Company makes out a’ prima facie case of a violation

of Section 610 rather than being deserving of the white-

wash applied by the Labor Department.

But more signiticantly, after -the Shultz testimony the

Labor Department admitted they did not know that George

Morris, Jr., the man who set up the meeting, had received

more than $1500 from UMWA District 12 (Illinois) last

year. Nor did. they know that four of the other men that

Mr. Yablonski identified as attending the- meeting ‘received °

more than $500 each from District 12 in 1969.* Mr.

Chairman, the investigation of the Springfiled matter was -

* Ere Bigham, $548; Robert Elmore, $755. 45; Bernard Martin,

$1,115.85; Jack Ponsetti, $530.

CME OE SA ROT

ERD YENI ON TI BOC IEE ETN I de

ARC ESL NRO te UN aE

. , ° oe ™ rj ghd i

SR ge ee es ee ey

a massive cover-up operation. It indicates that in the en-

forcement of this law (LMRDA), the Government accepts

the word of the attackers and does not even interview the

victim.

Blatant misrepresentations by the Secretary. Needing

an opportunity to cast doubt on the motives of those

critical of his performance, the Secretary next resorts to

an outright lie. Our pleas to have him commence an in-

vestigation ‘are regarded as “appeals . . . to the Depart-

ment... [for] assistance in [the] campaign” (p. 8). The —

only evidence cited by the Secretary to support this as-

sertion is that in the meeting.of December 15, after‘the

clection was over, we “stated that an early investigation

was necessary to maintain the campaign’s momentum”

(pp. 8-9). The word “momentum” was Mr. Silberman’s:

it was used by him to describe our contention that a

prompt investigation was necessary because readily avail--

able sources of information would dry up after the offi-

cial results of the election were made known. Local

union members and officers would be more cooperative

if they believed the election was still hanging in the bal-

ance, that reprisals might not ‘be visited on them for co-

Operating. Though Solicitor Silberman used this word

“momentum” in the presence of no less than a dozen

people, his brazen effort to distort the word, as he used

it, is conduct which even the Labor Department should

find reprehensible. .

The Secretary tries to but cannot justify his conduct

by saying that both sides found fault with his perform-

ance (p. 9). The matters contained in the Department’s

November 26, 1969 Summary Report of Investigation,

though sharply criticized by UMW incumbents, were not

earth shaking; most were, in fact, public knowledge. If

= -

this was the sum total of six months investigative work,

the investigation uncovered little.

The same can be said of the post-election investigation.

The manner in which the Secretary glosses over the $30

million purchase of pensioner votes shocks even our by

now dulled senses. Our research has uncovered nothing

in the history of the LMRDA which compels a restrictive

reading of the words “improper interference” with an elec-

tion, as used in Section 401(e). Indeed, basic principles

of statutory construction require that the words be broadly.

defined; otherwise they are redundant with the other words

in the series: ‘‘subject to penalty, discipline, or improper

interference or reprisal of any kind. . .” Apparently re-

cognizing the shallowness of this line of reasoning, the ; .

Secretary trots out another boogie man — that a proper

reading of the statute might imperil collective bargaining

during an election campaign (pp. 14-15). We urge the com-

mittee to see ‘through this transparent effort by the Secre-

tary to evade his responsibility for enforcing the Act. In

no way could the Secretary bring into ‘question any agree-

“ment negotiated . . . during an election campaign.” The

agreement .itself could not be set aside; only the election.

could be set aside and it should not unless improper mo-

‘tive (an intent to influence the election by .aiding an in-

cumbent) could be demonstrated — a fact highly unlikely

since most unions, unlike the UMWA, deal at arms’ length

with employers. The Secretary’s vague generalizations con-

cerning the soundness of the increase are in no way related

' to any complaint to that effect. We have. never contended

that. -the soundness of the increase was subject to his or

anyone else’s review. It is merely illustrative of the haste

and political motivation behind the increase itself.

The Secretary’s position regarding bogus locals is but

another example of blindly accepting the word or position

of the UMW. Unwilling to make: a decision Concerning this

matter, the Secretary has refused to examine the plain lan-

guage of the UMW Constitution, which states that “local

unions shall be composed of ten or more workers . . .work-

ing in or,around coal mines” and “{i] f any mine or colliery

is abandened . .-. the [local union]. charter and all its nio- .

Neys .. . shall be taken over by the International Union

[and]... any remaining members . . . given transfer

cards.” Despite statements like Judge Hart’s — “they ap-

ply the Constitution when they want to, they don’t when

they don’t” — the Secretary accepts the weak explanation

that the union has always interpreted the constiiution to

permit non-functioning locals to exist. Mr. Chairman, is

it a defense to an unconstitutional act that one has al-

ways disregarded the constitution? Only Secretary Shultz

could answer this in the affirmative. .

The most incredible display of naivete is his concluding

statement on. the bogus local question that “even if there

had been a technical violation [of the Constitution], it

could not have had any effect on the outcome of the elec-

tion” (p. 17). Apparently, the Secretary believes there is

no difference between 1250-1300 locals voting in an elec-.

tion and about 700 locals voting. Apart from the logistics

of supplying observers, etc., to about half of the number of

locals that supposedly voted, there was the additional prob-

lem of finding the polling places of these locals, and the

myniad of difficulties of guaranteeing a secret ballot vote

once they were found and observers sent. Worst of all,

old Ponsioness were the prey for the hired Boyle men

that ‘ > the elections in these “bogus” locals.

The other remaining matter which the Secretary left

out of the ‘election case” was the massive group of dust

.committeemen, organizers, etc.,:that were added to the

45.

UMW payroll in 1969 at an.estimated cost of more than’

$500,000. First, let us deal with the question of ‘‘organ-

izers’’, since Mr. Usery suggested that the union “had

stepped up its organizing at that time’’.(p. 680). Aside

from the union’s bald assertion, where does: Mr. Usery

get his facts?) From Lou Antal, who testified belbre this ©

subcomittee that he was paid $400 a week, but did no

organizing? From Tony Dovshek, who told the Labor De-

partment investigators that he was paid for “‘organizing”

though he was in Canada fishing? How many new mines

were organized last year? At what mines were these organ-

izing drives conducted? How many NLRB elections were

held in comparison with prior years? Why were so many

organizers hired in Mr. Yablonski’s Pennsylvania home. dis-

trict (which is predominantly organized) when the most

substantial unorganized territory is in Eastern Kentucky,

where none were hired? Could it be. because ‘of the tor-

rid election contest in Pennsylvania whereas Mr. Yablonski

hardly campaigned in Kentucky for fear of -violence?

. 4

The same applies to ‘dust committeemen”.. What did

they do? They weren’t allowed inside the mines to check

the dust; and even if they were, they had no equipment

to monitor it. Why were six full time dust committee-

men added to the payroll in District 4 (which borders Mr.

Yablonski’s home) at a cost of $70,000, while District 20

(Alabama), which has more mines and ‘more active miners

than District 4, had no dust committeemen? Neither did

Utah or Colorado. Was it because there was no dust in

the mines in those states or because there was no real

election campaign in those states? Why are some of these

all important dust committeemen being laid off and re-

quired to return to work after the election? If these men

could not get inside the mine, what did they do — educate

the men that dust exists ingoal mines? Why is it that

sf >

regardless of the designation given to employees hired in

1969, they come from the coal areas where Boyle had

the stiffest election fight (West Virginia, Pennsylvania,

Ohio)? ,

Then there is the separate question of lobbyists (con-

trary to the Secretary’s testimony,” the “‘dust committee-

men” were not lobbyists). All were apparently paid two

or three times their lost salaries for participating in lob-

bying junkets. The fact that most of these novice lob-

byists were pro-Boyle boosters was apparently of no con-

sequence to the Secretary.

Finally, there is the argument that.many of these 1969

hifees were put on the payroll before Mr. Yablonski an-

nounced his candidacy (p. 18), as though that would

legitimatize the practice.. But the Secretary should know

that other anti-Boyle candidates had surfaced early in

1969, and certainly Boyle and Company were aware that

nominations and an election would be held (regardless of

who the opposition would be) during the year. The Sec-

_ Yetary seems to say that any union incumbents may hire -

_ at exorbitant salaries as many partisans as they wish at

union expense, and that so long as they appear to per-

form some type of work — the Department will not inter-

fere with their freedom to campaign for their benefactors.

We trust that the subcommittee does not share this con-

struction of the Act..

The Secretary seems to go out of his way, to charac-

terize us as being uncooperative in not making available

the names and addresses of Mr. Yablonski’s election ob-

severs (p. 19). Having failed in his duty. to investigate,

he now seeks to shift the blame to/those who begged

for action. Again, the Secretary must resort to a dis-

tortion of the record to serve, his purposes. The facts

are that sometime in ‘mid- anuaty a caller from the De-

partment asked for the names and addresses of our

observers. The Department was furnished with hundreds

of observer reports, but there was also a small card cata-

logue containing additional names and the addresses of

observers assigned out of Mr. Yablonski’s Washington D.C.

Cam Headquarters. Mrs. Clarice Feldman informed

the Labor\Department that the card catalogue was in Mr.

-Yablonski’s home; which was under guard by the FBI

and state authorities. Since. no family member was to be

admitted, Mrs. Feldman advised the Department to check

with the authorities. Apparently this ‘was never done;

nor was the request ever renewed after the house was

finally released... Yet, the Secretary castigates us for his

Department’s dwn, failure..

The Yablonski murders. The final two pages of the _

Secretary’s statement deserve special mention. The Secre-

tary says this was just another election campaign, and

then in an effort to publicly cleanse his conscience he

Says twice that the- murders had nothing to do with the

election. Who is the Secretary of Labor to make such

an assertion? Has he readwthe indictments returned by

the Cleveland Grand Jury%@ Is he aware that one count’

deals with a conspiracy to violate a union member’s

rights, and that another involves an obstruction of- justice

to prevent Mr. Yablonski from testifying before a UMW

Grand: Jury Probe in Washington, D.C.? Is he aware that

Mr. Silas Huddleston, President of a Local Union of the

UMWA in LaFollette, Tennessee, has been indicted. on

these charges? Is he aware that the United States Attor-

ney in seeking the grand jury indictment had to have .

evidence of probable cause and that the grand jury had °

to find that probable cause to indict? While no one

questions that all five of the indicted persons are inno-

cent until proven guilty, the fact remains that all the

evidence to date points to a clear connection between

the murders and the election through the participation of

Huddleston (and another Local Union President indicted

for perjury); the presumption of innocence does not

48 *

require an administrative -official to reject known facts.

Indeed, the mal remaining question is not whether this

was an election-connected offense, but just how high in

the union the culpability runs. What Secretary Shultz

did in his testimony was to challenge the F.B.I., the

United States Attorney.and the Grand Jury: only a guilt-

‘stricken man would deliberately undercut the enforcement

efforts of his own Government.

. * *° | ¢# x

"Before concluding this statement, Mr. Chairman, we |

would like to call to your attention one paragraph from

our letter of February 21, 1970, to Mr. Shultz. That

paragraph reads as follows:

““Mr. Secretary, you and your advisers are

apparently the only people in the ‘whole United

States who do not know how rotten things are

in the Mine Workers. Why do you refuse to

‘ see what even a blind man could not miss? Is

it the influence of Mr. Usery Who denounces .

‘the Yablonski group with allegations that they

accepted money from Walter Reuther and the

UAW (a false statement which Joseph A. (Chip)

Yablonski under oath denied as “garbage” be-

fore the Senate Labor Subcommittee)? Is it

your lawyers’ prattlings about “volunteerism”

in the labor movement, and Mr. Silberman’s de-

sire to play the wheeler-dealer role with the

UMWA? Or is it your own personal desire not

to take any steps of which the powerful UMWA

might not approve? We-do not know your

motivation for iriaction and apathy in the face

of tyranny and violence, but there is one thing

we do know:. We shall keep up this fight, what-

ever you do, because the. American ‘people will

” not forever tolerate bureaucratic indifference to

° 49

UMWA corruption any more than they would

in the case of the Teamsters The Yablonski

supporters will never- let you sweep this mess

under the rug.” ;

Sadly enough, Mr. Shultz’setestimony was just such a~

deliberate effort to do what we feared — to try and sweep

the mess of the United Mine’ Workers of America under

the rug. You and your Subcommittee have the oppor-

tunity to prevent this from happening. ,We have been

disappointed in the investigation: to date, but we hope

(and trust that you and your Subcommittee, will soon un-

dertake a real investigation in the great tradition of the

United States Senate. .

In sum, Mr. Chairman, we are shocked and: appalled at

the Secretary’s distortions, innuendoes, and fabrications.

It is frightening to ‘believe that. such a high public offi-

cial would re§prt) to such conduct to justify his” unjustifi-

able ,actions. Your Subcommittee unfortunately did little

to clear the air while Messrs. Shultz, Usery and Silberman--

-were before you. At least you could have required the

Secretary and his associates .to gQ under oath as have all

other witnesses.* But, in any event, we reiterate our re- r

quest to appear before the Committee, hopefully, simul- NX

taneously with the Secretary, so that the real facts can

be made known. In the eveht the Secretary should de-

cline a new invitation, we ask that you recommend to °°

the President that all of the Mine Workers’ investigations

be conducted by .a- crime task force under the jurisdiction

of the Attorney General. Surely, you would agree that

Mr. Shultz and the. Labor Department have demonstrated

an unwillingness to enforce the law which Congress en-

trusted to them. They should not be permitted to im-

pede and frustrate the work of the Justice Departrient

* To highlight this failure, we have sworn to this rebuttal.

IS BOO REAR RRA SOARES DEE

and .the F.B.L, which appear to be genuinely concerned

with cleaning up this union. .

/s/ JOSEPH L. RAUH, JR.

js) JOSEPH A. (*CHIP") YABLONSKI

| Notarial Certification,. dated May 25, 1970]

| EXHIBIT C-2 TO MOTION FOR LEAVE TO INTERVENE |

. UNITED STATES SENATE .

COMMITTEE ON LABOR AND PUBLIC WELFARE

WASHINGTON, D.C. 20510

June 24, 1970

- | am submitting to-each Labor Subcommittee member

this status report on our activities respecting the United

Mine Workers of America and related matters. This re-

port comes at a time of increasing problems in this gen-

eral area and a rapid development of a complex of condi-

tions troubling many of the workers in our Nation’s coal

fields.

These. conditions — which have been reflected .in walk-

outs by a number of coal miners in several states — include

dissatisfaction with the pace of the Government’s various

investigations and lawsuits involving the United Mine.

Workers of America, and with the administration of the

Federal Coal Mine Health and Safety Act of 1969; disap-

proval of the recent nomination of Dr. J. Richard Lucas

to be Director of the Bureau of Mines; and the assertion

of various coal miner grievances against the UMWA.

Sk:

UNITED MINE WORKERS INVESTIGATION

-Immediate priority under S.Res. 360 has been given thus

far to the circumstances surrounding the UMWA election

~of December, 1969 — an area in which we are exercising

a legislative oversight function with respect to the Labor

and Justice Departments’ administration of the Labor:

Management Reporting and Disclosure Act. We are, how-

ever, also actively pursuing the broad welfare and pension

plan study authorized by S.Res,,360, including at present

the preparation, with the minority staff, of a detailed ques-

tionnaire to be sent to a large sample of pension plan ad- °

ministrators.

Secretary of Labor Shultz appeared before the Subcom-

mittee on May 4 to report: on actions taken by his Depart-

ment with respect to the UMWA election, as well as other

matters concerning the UMWA. His appearance followed

the filing of suit to-set aside that election. This suit, which

resulted from a 200-man investigation’ that began on Janu:

ary 8, was based on several grounds — including the use of

Union funds, publications and facilities on behalf of the in-

cumbents, and various statutory violations relating to the

balloting process. In subsequent pleadings, the Secretary

‘has referred to several hundred instances of improper activ-

ity. - In addition, the Secretary has sought an injunction to

prohibit further expenditures of Union funds without the

maintenance of proper records to substantiate the actual

use made of such funds.

If properly pursued, this lawsuit should result in some

of the questions raised by the UMWA election being re-

solved through judicial proceedings. However, under. pres-

ent circumstances, many of the allegations we have received

concerning this election will not be resolved judicially, for

the Secretary reported to us that certain charges — which

were investigated either by the Labor Department of the

FBI — could not be substantiated. He further reported his

view that certain other charges did not constitute violations

under .current interpretations of the law.

In view of continuing public concern over charges that —

were not substantiated by the prior investigations, | believe

that investigation.in those areas by this Subcommittee is

essential, and the work of the staff has been directed ac-

cordingly. The subjects referred to include charges of vio¢

lence or threats of violence, as well as variotis allegations

of misuse of Union funds — including the hiring of dust

committeemen, organizers and others for Union political

campaign purposes.. In the course of their inquiry into

such matters, our investigators have also been -receiving

evidence of violations which appear not’ to have been cov-

ered by either the Labor Department or the FBI, and these,

too, are being thoroughly explored. Our investigative activ-

ity has included the issuance of ‘a number of subpoenas -

seeking financial records and information from officials

of the UMWA, the National Bank of Washington, and vari-

ous persons connected with the Boyle campaign.

At the present time, eight professional staff members,

under the direction of Salvatore J. Arrigo, a former deputy

assistant general counsel of the NLRB, are working on our

investigation. In addition to field investigators currently

examining election-related charges, the staff includes two

-investigative-auditors who have been examining the books

and records of the UMWA Welfare and Retirement Fund,

and two actuaries who have been making an actuarial study

of the Fund in order to determine the impact of the pen-.

sion increase which W. A. (“Tony”) Boyle put through at

the beginning of his campaign and which has figured prom-

inently in our earlier hearings. Commitments are currently

being completed to bring additional investigators on board.

In our inquiries, we have endeavored to take full. account

of other investigative activity, as well as a great deal of

pending litigation involving the UMWA or its Welfare and

Retirement Fund, in order to obtain a maximum amount

of background information, avoid fruitless duplication of

effort, and insure that our own efforts do not interfere

with the ongoing investigations which the FBI is conduct-

ing in several areas.. | :

| should point. out that Secretary Shultz’s report to the

Subcommittee raises a number, of questions of statutory

interpretation or enforcement policy, concerning which |

find myself in disagreement:

1. One matter of major concern, of course, has been

the refusal of the Department to investigate, prior to the |

murder of the Yablonski family, the allegations of improper

‘activity’ which had been repeatedly brought to its attention

during the period from July through December of 1969.

In his report to the Subcommittee, the Secretary took

the position that, except for allegations of violence, it is

legally contrary to the Labor-Management Reporting and

Disclosure Act for the Department to investigate possible.

violations of the law during an election campaign. I be-

lieve the Secretary’s view is erroneous, and represents a re-_

versal of the legal position held by the Department since 4

the Act’s inception in 1959. Section 601(a) of the Act

expressly states that the Secretary has power to investigate

whenever he believes it necessary to determine whether any

person has violated or is abcut to violate the Act. While.

I can understand the Department’s long-established geveral

policy of not conducting such investigations in advance of

an election, it seems to me this policy permitted an investi-

gation when information brought to the Secretary’s attention

indicates a pattern of irregularities which, if allowed to con-

tinue, will inevitably taint the election. In such cases, even

- though the Secretary could not actually go to court until

after the election, a display of the Department’s concern,

manifested through investigative activity, may well serve to

discourage continued violations of the law, as ‘well as pre-

serve evidence for later use in court, should that be

Ball .

goku neta. a.

¥,

c 4

necessary. I do not believe Congress intended that the

Secretary.’s hands should be ‘tied in the fashion of the Sec-

retary’s current interpretation. |

2, One of the election charges with which I have been

particularly concerned in our prior hearings, relates to the

$30 million annual pension increase engineered by W. A.

(‘Tony’) Boyle at the beginning of his campaign last June.

‘This increase was not obtained through a collectively bar-

gained increase in employer contributions. Rather, it was

to be met from the reserves of the UMWA’s Welfare and

Retirement Fund — a Fund which was already scarcely ‘hold-

ing its own in terms of annual iricome and outgo. This

manipulation of the Fund, which Boyle relied on repeated-

ly to appeal for pensioner votes during his campaign, seems

to have been one of the most decisive factors in the UMWA

election. A Subcommittee staff analysis, based on data sub-

poenaed from the Union, indicated 93% of the voters in

the all-pensioner locals voted for Boyle. Since the pen-

sioners comprise 70,000 out of a total UMW membership

of 185,000, the substantial impact on the election is self-

evident. - |

It appears that the Labor Department did not adequately

appreciate the significance of this situation, and readily

concluded that no violation of the Act was involved. In

“my view, however, the increase in the pension payments

~ brought about by Mr. Boyle for obvious political purposes,

represented a.substantial and improper interference with

the electoral process within the meaning of the Statute

(Sec. 401(e)). |

I have felt this situation to ‘be of sufficient importance

to direct an actuarial study of the Fund in order to pro-

' ject the effect this pension increase would have. The ac-

tuanes who have undertaken this work for the Subcom-

mittee have analyzed available data pertaining to the Fund’s

future royalty income, as well as its projected payments

. 55

for future medical, death and pension benefits. On the

basis of their analysis thus far, I believe their final report

will be found alarming by the thousands of miners who

are dependent upon the continued solvency of this Fund.

3. In March, 1969, the Department began a financial

investigation of. the UMW and found that funds were being

spent by Union officials without maintaining the required

underlying records which would document or permit veri-

fication of the authenticity of such expenditures. . Again,

when the Department undertook to investigate the elec-

tion, and inquired into the uses made of the startling

amounts of money which had been transferred by UMWA

_ headquarters ‘in Washington to sélected districts during the

' campaign, it again was stymied by the lack of records

which would ‘establish what actually had been done with

these hundreds of thousands of dollars. :

Thus far, the Department has simply sought an injunction

to require proper records to be kept-in the future. How-

ever, since there seems to have been a deliberate policy of

sparse record-keeping that makes jt impossible to determine.

. that Union funds have been legally expended, -I believe the

Government should initiate criminal proceedings under Sec-

tion 209 of the Act, which makes the willful refusal to

maintain prescribed financial records a criminal offense.

This is a case where it would appear to be in fhe public

interest to prosecute for failure to maintain records, even

though the Government may not obtain sufficient evidence.

to irivoke the embezzlement section (501(c)) of the Act.

It is important to note in this regard that an individual

convicted of failure to maintain required records would

thereby become legally disqualified from holding union

office (Section 504). |

4, ] believe that the Department having asserted, the use

of the United Mine Workers Journal for campaign purposes

as one’ of its grounds for overturning the election, should

be more alert to the use that is still being made of the

Journal. This point was raised with the Secretary when

he appeared before the Subcommittee and has again been

raised in subsequent staff discussions with the Department.

I am hopeful that the Department will request appropriate

‘court relief, so as to preclude the possibitity that any re-

tun election ordered by the court will not be im properly

-affected. |

5. The Departments of Labor and Justice appear to

“have taken an unwarrantedly narrow view: of Section 610

of the Act, which makes it a crime for any person to use

force or violence in order to interfere with a union mem-

‘ber’s rights — including the right “‘to express any views,

arguments or opinions.” In reporting on the episode in

June, 1969, when Mr. Yablonski was physically attacked

at a meeting in Springfield, Illinois, the Secretary and his

Solicitor stated that the man eventually identified as the

attacker explained that he was not paid or induced by

UMWA officials to assault Mr. Yablonski, but that it was

‘strictly a spontaneous action resulting from something Mr.

Yablonski had said in his speech with respect to a matter

of union affairs. In the Government’s view, we were: told,

this did not constitute a violation of Section 610.

This view is contrary to the terms of Section 610 and

at least one Federal court of appeals decision, United States

v. Roganovich, 318 F.2d 167 (7th Cir., 1963), and I be-

lieve our Committee should appropriately indicate its dis-

agreement. Whatever practical problems might now stand

in the way of successfully prosecuting this particular in-

dividual, the legal interpretation given to us by. the Labor

Department representatives should not remain unchallenged, |

lest it encourage similar actions by others in the future.

7 57

6. In my view, the Labor Department dismissed far too

abruptly the objection’ that one-half of the UMWA’s 1200 ©

locals exist in violation of the Union’s own constitution

since they have less than+10 working members, and that

members of such locais should’ have been transferred to,

and required to vote from, properly constituted locals. The

UMWA’s constitution is quite cleat on this score and,

view of the testimony we hgve already heard eaatice ie

abuses tg which these “bogus locals’’ are subject, I strongly

wena with the Secretary that any violation was at most.

“technical” one.

While we will be hearing further evidence bearing on °-

some of the foregoing matters, |. thought it important to

bring them to your attention ‘at this time, as I believe they

are issues on which the Subcommittee and the full Com-

mittee will need to make a judgment.

‘@.

COAL MINE HEALTH AND SAFETY PROBLEMS

Since the signing on December 30, 1969, of the Coal

Mine Health and Safety Act, the Administration, through

a series of unfortunate decisions in certain matters, and

its failure to act in other areas, has allowed a situation to

develop, which on the surface, appears chaotic.

After surveying the first five months of this Act’s opera-

tion and observing reaction within the industry, I must con-

clude that several very serious problems exist which are in-

creasing in scope with each passing day:

1. Staffing at the Department of the. Interior

The Department of the Interior undertook a major reotgani-

zation of the Bureau of Mines (both structurally and in

terms of DEASOnNE?) during the three- month period provided

PAu? Sere et

PONE MURR GE Remy Sor eso TR

= :

under the Act for implementation. This reorgairiAution was

the second in little more than a year: As part of this

latest reorganization, the Director of the Bureau. John

O’Leary, was summarily dismissed the weekend prior to his

scheduled testimony before. the House Appropriations Com-

mittee: the Bureau’s black hing expert.. Henry Doyle, was

reorganized out of his position and has ‘refused a new posi-

tion because he believed that the reorganization was detri-

- mental to proper implementation of the Act. Now, the’

‘Administration has nominated as the new Director an in-

_ dividual whose: suitability for this most difficult assignment

_ has been subject to serious question.

7, . Z

2. Regulations Issued by the

Department of the Interior

The Departtient of the Interior has foued a series of regu-

lations, some in conjunction with the Department of Health,

Education and Welfare. These regulations were issued either

after the deadlines imposed by Congress, or only a day or

two before they were to become effective. They were pub

-lished as final regulations under procedures which did not

provide opportunity for interested parties to comment.

The regulations include several noticeable and serious defi-

ciencies, some of which — suchas the penalties section —

have led to an emotional reaction in the coal fields, which

is deterring rather than aiding compliance,

The Department of the Interior began to implement its

regulations by what it calls ‘“‘partial but representative

(PBR)” inspections on Marcn 30, 1970. For each notice

of violation, it also issued a “notice of penalty,” averaging

ten such notices per mine inspécted. The notice of penalty

was provided under Interior’s new regulations, and prescribes

a schedule of penalties (beginning at $25 per violation)

bearing no relationship to any of tle criteria for penalties

established in the Act (¢.g., size of mine, wilfulness, seri-

ousness of violation, effort of operator to comply). Since

the publication ‘of these regulations, Interior has modified

the fee schedule, but has not corrected any of its defects.

. ,

' . - —? os 7

’ Ray aan Sey ee

Approximately. 75 operators of small mines obtained a

temporary restraining ‘order against those portions of In-

terior’s regulations containing the penalty schedule and

safety standard requirements where the equipment, tech-'

nology, -personnel or materials required for compliance are .

not available. This order, in effect until a three-judge 7

constitutional court convenes in September, has resulted in

a substantial part of the statute not being enforced. In my

judgment, the Government did not engage in the rigorous

defense agairist this lawsuit that concern for safety of the

miners required. Moreover, the Interior, Department has,

without justification, treated the restraining order as in-

dustry-wide instead of limited to the small mines bringing

the lawsuit. The effect of this action has been to cut

back on enforcement of the statute. - ye

Proposed amendments to the Act on both the House and

Senate sides have ‘been introduced to postpone the: assess-

ment of penalties until September 1, 1970, to amend the q

standard requiring brakes on locomotives and haulage cars

and to modify the definition of working face. On the

Senate side, the amendment was offered by Senator Ben- _

nett for himself, Senator Cook and Senator Smith (IIl.),

(S..3733, May 1, 1970), and has been referred to this -

Committee. “On the House side. it was offered by Con-

gressman Burton (Utah) and Congressman Brock (Tennessee).

In my opinion, no basis has been established for such ac-

tion by the Congress, particularly since the problems in-

volved can be dealt with by the Interior Department under

its existing authority. ; . ul

| 60

3. Reaction of the Industry |

In addition to obtaining the court injunction, industry re-

action to the new law and its administration has included

closing mines (approximately 200 closed within two weeks

of the effective date of the Act), and announcing price in-

créases and further contemplated increases ‘for coal, which

are reported by the Wall Street-Journal to range as high

as 30%. Most of this increase is alleged to be a result of

the added costs brought on by the Health and Safety Act.

The newspapers are also reporting with increasing frequency

statements by industry leaders, and others, attributing ex-

pected blackouts and brownouts this summer to shortages

- Of coal caused by the newsafety law. My survey and in-

vestigation of the power shortage warnings indicate that

possible power failures would be largely due to the utility

industry’s inadequate generating capacity, as well as a |

shortage of coal-carrying railroad cars, and other causes

not related to the new health and safety requirements.

4. Nomination of Dr. J. Richard Lucas

President Nixon has nominated Dr. J. Richard Lucas of

West Virginia to be Director of the Bureau of Mines to re-

place John O’Leary. Shortly after announcement of the

nomination, criticism was voiced by Congressman Saylor .-

(R-Pa.) and. Congressman Hechler (D-W. Va.) Since then,

a great deal of press attention has focused on opposition

to the nomination, and a number of coal miners have con-

veyed to me their deep concer that Dr. Lucas is not an

appropriate choice. The opposition to his nomination is

based primarily on. charges that:

1). the scholarly credentials which supposedly quali-

fy him for this position are seriously flawed,

2). he has a long history of close ties to the coal

industry, coupled with a réported $200,000 in:

vestment in mining interests, and

3). he has shown no evidence of the leadership po-

tential and strong-mindedness which will be ab-

solutely essential to the successful performance

of this very demanding position.

S. Reaction of the Coal Miners

The Subcommittee has had several visitations from groups

of coal miners urging the Subcommittee to take whatever

steps are necessary to protect their health and safety and

to ensure union democracy. Regarding health and safety,

‘these miners link the nomination of Dr. Lucas with the

demonstrably poor record of Interior. in implementing the

Act. The general attitude they express is that they were

better off under the old, inadequate safety law than under

the improperly administered improved law, and thig atti- —

tude has been reflected in the walkouts which have oc-

curred during the past week. |

In view of the foregoing circumstances, I have scheduled

a Subcommittee trip to the coal fields for June 25 and 26,

about which you have been previously notified, in: order to

obtain further first-hand information. At the conclusion

of this trip, I believe a determination can be made as to

appropriate action by the Subcommittee respecting the ad-

ministration of the Coal Mine Health and Safety Act.

With kindest personal ‘regards,

Sincerely,

/s) HARRISON.A. WILLIAMS. JR.

* Chairman,

Subcommittee on Labor

PLES IE Gs TAP URE EY MEATS, i

é | IRN 6 i iy VF at a

RAS itp

UPL TES Y OD

{EXHIBIT C-3 TO MOTION FOR LEAVE TO INTERVENE]

Discussion of Senator Williams’ “Status Report”

of June 24, 1970 Concerning a Senate Labor

Subcommittee’s Investigation of Activities of the

United Mine Workers

On June 24, 1970, Senator Harrison A. Williams, Jr. sub-

mitted to each member of the Senate Labor Subcommittee

a “Status Report” of the activities and interim conclusions

of that committee in investigating the United Mine Workers

and the Department of Labor’s activities vis-a-vis the UMW.

That status report makes 6 specific criticisms of Laber De-

\partment actions and policies in regard to the UMW elec-

tion case. Most of these points were dealt with in detail

in Secretary Shultz’ testimony of May 4 but a reexamina-

tion of these issues is necessary in order to prevent mis-

understanding.

In summary, Senator Williams’ criticisms, and the De-

.partment’s position are as follows. A more detailed dis-

cussion of each point is attached.

1. The status report states that the Department of La-

bor should have investigated alleged violations of the elec-

tions provisions of the Labor-Management Reporting and

Disclosure Act of 1959 (hereinafter referred to as the

’ LMRDA or the Landrum-Gniffin Act) during the election

campaign.

The Department has never conducted an in-

vestigation of an election during the campaign.

This is a sound policy and is required by the

nature of the statute.

2. The status report states that Mr. Boyle’s action to

increase pension benefits is an “improper interference” with

the election process.

63.

The Department has concluded that action,

by a union officer (even if unwise or motivated

by a desire to gain support), during a campaign,

tO improve the economic condition of his mem-

bers does not, by itself, violate the LMRDA.

3. The status report suggests that criminal proceedings

be initiated for a willful refusal by UMW officials to main-

tain required records. Senator Williams has also suggested

_ that criminal proceedings be initiated because certain finan-

cial reports have not been filed on time.

The Department does not have the necessary

evidence to support a criminal action for “willful”

violation of the record-keeping requirements or:

for “willful”? refusal to file financial reports.

4. The status report suggests that the Department should

seek ‘

‘appropriate relief” for alleged current misuse of the

UMW Journal.

PAs

“To the extent that the status report suggests

int the UMW Journal should be neutral until

the court orders a new election, it implies that

the Government should oversee the contents of

the publication. This is difficult to square with

traditional notions of freedom of the press.

5. The status report suggests that criminal prosecution

should have been sought under section 610 of the Landrum:

Griffin Act fot the physical attack made on Mr. Yablonski

in Springfield, Illinois.

The Department of Justice concluded there

was no sufficient basis to prosecute criminally

under section 610 which requires proof that the

assault on Mr. Yablonski was made “for. the pur-

pose of” interfering with his rignts under the Act.

A EEO SS Id ese

MLLER EY a CES cost

SE WES ORE El NRG ALEC ra TUNE aR tenes

net ete nae RRO GOOLE

ETI ORE ERE

ERR Ta a Ire snap

UNLISTED I: BR Rg ps ON mIRCgeN Rt

L 6. The status report asserts that members of locals hav--

| ing less than ten working members “should have been trans-

i ferred to, and required to vote from properly constituted

4 locals.”

| | There is no contention that persons voted who

| should not have. Moreover, the LMRDA does not

authorize the Secretary of Labor to compel atrans-.

_ fer of union members from one local to another.

Such an extraordinary power would, in effect,

authorize the Department to reorganize uftions.

1, The status report states that the Department of Labor

should have investigated alleged violations of. the elections

provisions of the LMRDA during the election campaign.

| ‘The Department of Labor has concluded that an inves-

| tigation of election violations during the course of a cam-

paign is not contemplated by the statute. In the eleven

years since the law was enacted the Department has never

investigated during the course of a campaign despite. many

requests to do so. This practice has, in the past, been ©

justified as a policy consistent with the purposes of: the

statute. It-is merely a:change of emphasis to call it | a

" practice required by the statute. ‘

In examining the Department’s authority to investigate

_ during the course of a union election campaign it is neces-

- sary to consider the interrelationship of Title IV ‘‘Elec-

tions” and section 601.

Title IV of the Act préscribes a three-stage procedure for

remedying violations of the statute’s election provisions. .

First, the invocation of the internal union remedy; second,

investigation by the Secretary; and third, court action to

set aside the election and conduct a new one urider the

Mower ne sana es

Leh eM, Mudin A

supervision of the Secretary. The statute gives the Secre-

tary no authority to challenge violations occurring before

the election is held or before the internal remedies have

been exhausted. This is no legislative accident. It reflects

the Congressional commitment to minimize the extent of

- Government intervention. The bill’s supporters repeatedly

stressed that its language should be read as authorizing only

the most minimal Government intervention in union affairs.

As the Senate Labor and Public Welfare Committee said

when it reported out S. 1555, three “principles” had guided

its deliberations. And the. first of these principles was the

maintenance of minimal Government interference. Specifi-

cally, the Report stated: —

The committee recognized the desirability of min-

imum interference by Government in the internal

affairs of any private organization. Trade unions

have made a commendable effort to correct in- ©

ternal abuses; hence the committee believes that

only essential standards should be imposed -by

legislation. Moreover, in establishing and enforc-

ing statutory standards great care should be taken

not to undermine union self-government or weaken _

unions in their role as collective bargaining agents. !

The Congressional policy of limited governmental inter-

vention into union elections under Title IV on first

| See the Senate Labor and Public Welfare Committee Report.

_ U.S. Code Congressional and Administrative News, 1959. p. 2323,

Vol. 2. The other two principles: the report emphasized were the

avoidance of “paternalistic” government regulation and the institution

of direct remedies for abuses, without applying “destructive sanctions”

to the unions. See also, Wirtz v, Local 153, 389 U.S. 463.

Se ea Die

er ae,

abana ge gs Chg EN a cinta Be se; 2

“oe aia

. 66

impression appears inconsistent with section 601 of the Act

which, read literally, grants a broad: investigatory power in-

dependent of the limitations of Title IV:

While two ‘courts of appeal? have held that the broad

investigatory authority under Title. VI is not limited by the

express procedural requirements of section 402, one of

these courts did: recoghize a potential conflict between the

overal] policy of Title IV and an unrestrained use of sec-

tion 601 during an election campaign. .

The Court noted the union’s argument that: “. .. if

Section 601 is’ construed to empower the Secretary to in-

vestigate Title IV violations prior to the date of an elec-

tion, the investigation might well unduly influence the out-

“come of the election” and responded that “Since the in-

vestigation in this case was not instituted until after the

election had been held, we express no opinion as to the

Secretary’s power to commence an investigation during an

election campaign.’

An investigation during an election campaign would raise -

the very issue which the First Circuit did not decide and

which no court has ever decided. From 1959 until today,

the sole use of section 601 investigatory authority in elec-

tion cases has been to collect or preserve evidence regard-

ing elections which have already been held and, therefore,

in circumstances in which the outcome of the election

could not be affected. Investigatory authority under Section

601 has been used only after the balloting was done — but

2 Local 57 v. Wirtz, 346 F.2d 552 (Ist Cir. 1963); Wirtz v. Lo-

cal 191, 321 F.2d 445 (2d Cir. 1965). |

3 346 F.2d 552, 555.

before the procedural: requirements for a title IV investiga-

tion had been met. Under these circumstances, an investi-

gation cannot affect the outcome of the election.

A limitation of investigative power under section 60] in

electton.cases to circumstances’ which will not unduly in-

fluence the outcome of the election is a rational harmoniz-

ing of these two different provisions of the statute.

While Section 601, taken alone, mightjustify a pre-

election investigation, this language — like the language of

“any other provision of any statute — may not be taken

alone. It must.be read in context and in light of the

drafters’ purpose, due consideration being given to the —

ramifications which flow from any particular reading.

Contextually, the placement of the provision and the

usage Of similar language in numerous other statutes indi-

cates that its purpose was to ensure the availability to the.

Secretary of the tools which are necessary for carrying out

his litigative responsibilities under the substantive sections

of the Act.4 The intention of the drafters supports this

contextual analysis, for in both the House and the Senate

Committee reports, it is noted that section 601 merely re-

states the authority to investigate which is given the Secre-

tary elsewhere in the Act.>

The conclusion drawn from the legislative history is ‘sup- |

ported by a number of additional considerations. —

4 See Oklahoma Press Publishing Co. vy. Walling, 327 US 186

(1946), where similar FLSA language was so interpreted.

5 The precise word used is “recapitulates.”” See pp. 2350 and

2449, U.S. Code. Congressional and Administrative News, 1959. Vol.

4 ,

wees

4 SERA teeamien seep Conn aia iy ued Lain cmanpieneen

PAS Y een peer tre 2 WTRURA LOT RY il el Si

a. Most investigations of union elections re-

veal some violations of the Landrum-Gniffin Act.

Some of those violations are more significant than

others. Some of the violations are committed by

the unsuccessful candidate. The Congress was ¢on-

scious of these realities and authorized the Labor

Department to bring action only where it is de-

termined that the violations “‘may have affected

the outcome of an election.” Can one attribute

to the Congress an intent that the Labor Depart-

ment should investigate before an election and

then wait until afterward to determine if the vio-

lation could have “affected the outcome” of the

election?

There are an estimated 20,000 union elections

each year and it is not uncommon for.one of the

partisans in a hotly contested union election to

make allegations of a “‘pattern of irregularities.

which, if allowed to continue, will inevitably taint

the election.” If it. were incumbent upon the

Labor Department to conduct an investigation

each time such allegations were made during the

course of a union election, the investigatory staff

having the responsibility would have to be radically

expanded despite the fact that the Department

could not act\upon any such investigation unless -

and until valid complaints were processed and

left unresolved by the unions and a determina-

tion was made that the allegations, if substan-

tiated, might have affected the election outcome.

b. The Government must, of course, avoid

taking sides in a union election, or giving the ap-

pearance of doing so. If the Department, of Labor

were allowed to and did investigate during the

pre-election period, if might, by the mere fact

' of investigation alone, be interpreted as taking

the side of the party alleging violations. The |

investigation nvght become the central issue in

in the campaign to the exclusion of the substan

tive issues of genuine importance to an informed

electorate. .

Further, in the pre-election probing for facts,

investigators must ask questions which may often |

raise at least suspicions in the minds of prospec:

tive voters that the Department of Labor was tak-

ing sides.

The election influence of a Government inves- - t

tigation is compounded when one considers that é

at the conclusion of the investigation the Depart- f

ment of Labor may only report its findings or ‘

remain silent. Either course Carries significant im- f

plications of “whitewash,” “partisanship,” etc., E

. and more deeply embroils the Department iin a’ ;

Campaign which is supposed to be between the F

candidates. | — ‘

3 iQ a

It is a recognition of these clear facts of poli- |

tical life that hasyled the NLRB to await the out- ;

come of an election before investigating alleged i

misconduct during a Tepresentation election cam- 4

6 When an unfair labor practice charge is filed with the Board.

the election process is stopped, an investigation is conducted and a

remedy effectuated, unless the charging party waives his right to this

procedure and desires to go forward with the election. Only then

is the election process recommenced. See Twenty-Ninth Annual

(Cont’d.)

haan

SEERA AES ANTEATER CRIN RT he ete 78

‘the Government’s preclusion from anything but

post-election functions in Title IV,’ that an in-

‘ formed Congress could have intended any thing

else here.

c. It is also significant that under Title IV

the Department’s post-election investigation find-

ings of violation must be ‘proved in court before

an election can be overturiéd. The Congress

specified that the Department of Labor was not

unilaterally to impose its judgment concerning

election conduct upon the union. However, if

the Department were to conduct an investigation

prior to the election, that investigation ‘itself, plus

any annoyncement of its findings would clearly

have an impact, an impact. unilaterally created by

‘the Department without the court review required

by the Congress in: Title IV.

Fundamental issues of national labor policy are involved

‘here. If the Congress believes that vioJations of the elec-

tion provisions of the Act should be investigated by the

Department before the ‘election is held, it should not only

‘provide for such investigations but also vest the courts

_ with jurisdiction so that the Department’s findings may be

adjudicated and appropriate relief granted, or if the. Con-

gress wants the Department to supervise union. elections:

generally, it should express its will in legislation.

The “Status Report” expresses particular concern that

Mr. Boyle’s pre-election vote to increase pension benefits

_Ftn. 6 (Cont’d.)

Report of the NLRB, p. #. Thus, the Board believes it impossible

to fairly continue an election campaign at the same time it is inves-. .

tigating charges of legality relating to the campaign.

7\ 7

for union mem bers was an improper interference with

- election process, and, as such, violated sec. 401(e) of te

Landrum-Griffin Act. We

‘ Section 401(e) States, in pertinent’ pat that a-union

member shall have the right to participate in theihion’ $

electoral process “without being subject to. +. improper

‘interference of any kind.by such organization or any mem-

ber thereof.” It is contended that Boyle’s vote amounted

to improper interference: » |

The backeround of the pension increase, however, does

not permit such an easy judgment; for there wads among .

the union membership widespread sentiment in favor of a

_ pension increase.’ At the 1968 convention, 242 resolutions

were introduced in favor of it. Boyle went on record at

the convention .as also being in favor of it, but. he did not

have the power to implement his views, as he was then not

a pension fund trustee. When, upon-the death of John 7

Lewis, he did become a trustee, he voted his views.

In addition, the report misconstrues the opetation ‘of the

UMW pension fund. The fund is governed by three trus-

“tees — one from the union, one from management and one

neutral. Boyle could be outvoted at any time. "The trus-"

tees could act today, if they So desired, to change benefit

levels. The fact: is that pension levels were not: increased

by Boyle, but by a majority vote of the trustees..

Len Tegal question is’ whether the imcrease in pensions

was “improper interference” with the election.

The legislative history indicates the term ‘ ‘improper _in-

terference” is limited to interference that amounts to co- |

ercion or intimidation. The House Committee stated’ in its

RENE eC ETAT hate

m :

SERIES? FORRES ENA

n. PPO 2 = S fi ar RA sy ‘ ety Bde

a a i a a m8 8s Mare TER LOE NS Te eee ee ee 7 CSE ES »

6 eal i

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=" a . WSR

Mati

(Ce bana inci it st tink NC EBL Ste A tin

report that the purpose of section 401(e) .was to “forbid

intimidation of voters and denial of the right to vote.’’

In addition, the Exchange Parts doctrine, which gives a

broad reading to the term “interference” in the Labor

Management Relations Act, is not applicable. In N.L.R.B.

v. Exchange Parts Co,, 375 U.S. 405 (1964), the Supreme

Court held that an employer interfered with the employees’

- Tights by granting a raise to employees during an organiz-

ing drive. The Court decision was based on the fatt that

such a raise demonstrates the employer’s power. ‘‘The dan-

ger inherent in well-timed increases in benefits is the sug-

gestion of a fist inside the velvet glove. Employees are

not likely to. miss the inference that the source of benefits

now conferred is also the source from which future bene-

fits must flow, and which may dry up if not obliged.’®

That reasoning does not apply to an internal union contest

because neither faction has that kind of unilateral power.

But it is not only the lack of unilateral power which

makes the Exchange Parts analogy a false one. In a repre-

sentation election, the contest is between the employer

and the union — and the employer will remgin powerful

regardless of who wins tke lestion In non election

if one side is defeated, its power ind, therefore, even

‘a demonstration of power before the election is not neces-

sarily an intimation of what will happen after the election.

There is a more basic question, too: What kinds of ac-

tions are permissible in an attempt to convince voters to

vote one way or the other? No one would contend that

7 U.S. Code, Congressional and Administrative News, 1959, Vol.

2, p. 2439.

8 375 U.S. at 409.

the Act proscribed campaigning and attempts by candidates

and their supporters to influence the voters to vote for

their candidate. If one of the candidates holds a position

which provides him with the power to enhance the econom-

ic benefits ‘of the members, is he precluded from doing so

during the period of the union’s election campaign? If the

Labor Department were to decide that a pension raise, such

us is involved in the present case. constitutes “improper in-

terference’’, would not 4n incumbent candidate’s negotia-

tion of a raise in the wage scale during the campaign pe-

riod also be a violation of the Act? Statutory language

should not be strained to reach such an extraordinary and

undesirable result. The Labor Department’s interpretation

is supported by. sound, policy and the legislative history.

PG Sa 0: Heuer omne ond

If there is serious Congressional Concern about the mis-

use of pension trusts, ds there is Administration concem, it

would be appropriate to expedite the passage of the Ad-

ministration’s proposed Employee Benefits Protection Act.

That bill would require pension fund trustees to act with

prudence and “‘solely in the interest of the participants and

beneficiaries of the fund.” |

The ‘Status Report” suggests that criminal proceedings

be initiated for a willful refusal by UMW officials to main-

tain required records. Senator Williams has also suggested

that criminal proceedings be initiated because certain finan-

cial reports have not been filed on time.

There. is now pending in‘ the Federal courts a civil action

brought. by the Secretary of Labor to enjoin the UMW’s

violations of the reporting. requirements of the Act. With-

out becoming involved in a detailed discussion of this case

or other investigations which are being currently undertaken,

it is important to point out the background of this matter. .

In March 1969, before Mr. Yablonski’s announcement

of his candidacy, the Department of Labor began an in-

vestigation of the UMW’s financial records. Violations were

found and the union was officially notified of its deficien-

cies.

On March 5, 1970, the Secretary of Labor brought a

- civil action against the UMW which sought, among other

things, a preliminary injunction in resation to the alleged

record-keeping violations.

Subsequent to the complaint, the Department filed a

motion to require the union to produce its books and rec-

ords for the years 1967, 1968, and 1969. This motion

was recently granted and the Department’s auditors will be

inspecting the pertinent material shortly.

The “Status Report” suggests, however, that in addition

to thig action, there should be initiated a criminal proceed-

ing for the willful refusal to maintain the required records.

_ The Government’s evidential burden is much greater in

a criminal case than in a civil one. In a-civil action; the:

Government’s burden is to prove the allegations by a pre-

ponderance of the evidence. In a criminal case, the allega- .

tions must be proved beyond a reasonable doubt. . Further-

more, a criminal conviction requires a showing of “‘willful-

ness” which would be especially difficult in the UMW case

because their record-keeping procedures apparently have

changed little since the early days of John L. Lewis and

the Department has no evidence establishing ‘“willfulness.”

The most important goal is getting accurate records. The

Department has pursued that goal in a diligent, direct *man-

ner. . |

The UMW, in fact, has been late in filing its financial re-

ports, Each year, however, more than 10,000 delinquencies

“eatin

Paty BPS ae ROE IEG

and late filings occur. Aside from the fact that such a

filing does not itself constitute a sufficient offense to war-

rant criminal prosecution without evidence of ‘“willfulness”’,

the result of a position to the contrary would: require the

Department to proceed criminally against a vast number of

American labor unions.

The “Status Report” alleges that the UMW Journal is be-

ing misused and suggests that the Department of Labor seek

“appropniate relief.”

The misuse of the UMW Journal forms part of the basis

for the civil action brought by the Department of Labor

against the UMW on March 5, 1970 and the Department

has requested that the court grant appropriate relief. The

issues Of the- UMW Journal published since the date of the

election are presently being examined, and consideration is

being given as to whether appropriate interim relief should

be requested in the pending action. However, the legal,

and indeed the constitutional. problems are very difficult

and are illustrated by the holding in a case brought by Mr.

Yablonski during the election campaign, in which the court

found itself precluded by the First Amendment guarantees »

of free speech and press from granting any relief which

_ would interfere with the free operation of the Journal.

[ Yablonski v. UMWA, 305, F. Supp. 868 (D.C., Sept. 15

1969)]

The “Status Report” states that an indictment should

have been issued, pursuant to sec. 610 of the Landrum-

Griffin Act for the physical attack made on Mr. Yablonski

in Springfield, Illinois, The report cites the case of United

States v. Roganovich, 318 F.2d 167 (7th Circuit, 1963), as

-authority for this assertion.

Section 610 of the Act makes it a crime for any person

_ to use force or violence, or the threat of force or violence,

“to restrain, coerce, or intimidate . . . any member of a

labor organization for the purpose of interfering with”’ his

rights under the Act. (eciPaasis added )

Section 101(a)(2) establishes, as one of these rights, the

night of every union member “to express any views, argu-

ments, OF Opinions; and to express at meetings of the labor

organization his views . . . upon any business properly be-

fore the meeting.” |

On June 28, 1969, Mr. Yablovski spoke at a campaign

meeting in Springfield, Illinois. As the meeting was break-

ing up, Mr. Yablonski was hit on the chin and knocked

unconscious by a union member. The FBI promptly in-

vestigated the incident. Its investigation determined that

the assault was the spontaneous action of a man who had

disagreed with Mr. Yablonski’s views on allowing pensioners

to vote; he was not paid or otherwise induced to commit

the assault. On the basis of the facts revealed, the Depart-

ment of Justice concluded that there was no violation of

section 610 and that no prosecution should be undertaken.

The case of United States y. Roganovich does not alter

this judgment. Roganovich concerned an assault at a un-

ion meeting which occurred after 2 member .challenged the

statement of the local’s business representative. The pur-

pose of the -assault was to keep the member from express-

ing his views. To obtain a conviction under section 610,

the Government must be able to show ‘not only that the

assault took place, but that the purpose of the assault was

intimidation. That purpose could not be shown in the

Springfield incident. The assailant had become riled up —

emotionally distraught — over Yablonski’ S position relating

to voting rights. for pensioners.

That the assault took. place is undeniable: that it was

violative of state and local law is also highly probable. But _

an argument between two union members over union policy

which results in an altercation is not, just because there was

an altercation, a violation of Federal law.

The “Status Report” states that the Department of La-

bor dismissed too abruptly the problem of “Bogus Locals”

(i.¢., locals having less than 10 working members). The re-

port contends that the members of one-half of the UMWA’s -

1200 locals should have. been transferred to, and required

to vote from, properly constituted locals. There is no con-

tention here that persons voted who should not: have; it is’

‘only contended that they should have voted at a different

polling place.

This allegation draws its chief appeal from the use of the

words “bogus”’ or “bogey.”” No one has yet argued that

the members of these locals are not entitled to vote under

the UMW constitution and under the Act. . The argument,

therefore, is only where the members of these locals should °

vote. If the locals are not legal, the members would just

have been transferred to other locals and voted at a differ-

ent polling place. Remove the label “bogus” local and the

issue falls into perspective.

These “bogus locals” are locals which have fewer than’

ten working members. Article XIV, Section 1 of the United

Mine Workers’ Constitution provides that “Local Unions

shall be composed of ten or more workeis, skilled and un-

‘skilled, working in or around coal mines, coals washeries,

coal processing plants, coke ovens, or in other industries

designated and approved by the International Executive

Board, but seven members shall be a quorum for Local

Union.” Section 19 of that same Article provides: ‘When

a mine, is abandoned indefinitely and all the members of

th¢ Lokal Union having jurisdiction over it have gone to

work elsewhere, the Local Recording Secretary must notify

—

the District Secretary of the fact, and the District Secretary

must collect the charter, seal, moneys, books, supplies, prop-

_ erty, including real estate, belonging thereto and notify the

International Secretary-Treasurer.”” Section 21 of that Arti-

cle provides: “If any mine or colliery is permanently aban-

doned, or should any Local Union for any cause disband, or

should its charter be revoked, the charter and all moneys,

supplies and property, including real estate belonging there-

to, shall be taken over by the International. Union; provided,

that any remaining members of such Local Union in good

standing shall be given transfer cards.”

The Union had always interpreted these provisions of its

Constitution as requiring at least ten working members be-

fore a local could receive a charter, but did not require that

if a chartered local ends up with fewer than ten’ working

members, its charter must be revoked. The LMRDA does

not, of course, contain any authorization for the Govern-

ment to compel the transfer of members of one local union

to another local. The authority to reorganize the internal

organizational structure of unions would be such an extra-

ordinary power that it would clearly require new legislation.

The Department of Labor has reviewed this interpretation

and has determined that it is not arbitrary.

[EXHIBIT D TO MOTION FOR LEAVE TO INT ERVENE]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JOSEPH A. YABLONSKI, et al.,

: Plaintiffs,

Civil Action

bi No. 3436-69

UNITED MINE WORKERS OF

_ AMERICA, et al.,

Defendants.

COMPLAINT FOR ACCOUNTING.,. RESTITUTION

AND DAMAGES FOR VIOLATION OF

29 U.S.C. §- 501

1. This is an action for an accounting, restitution, and

damages. Jurisdiction is founded on the District of Colum-

bia Code, 88 11-521 (1967 ed.) and on 29 U.S.C. Sections

185, and 501(a) and (b), and on 28 U.S.C. Section 1331.

The matter, in controversy exceeds the sum or value of

$10,000, exclusive of interests and costs.

. 2, Plaintiffs, Joseph A. Yablonski, Karl Kafton, Richard

Weaver, John Wnek, Harry Elmer Brown, P. G. Gillespie, -

Harry Patrick, Arthur Nelms,. George R. Thomas; Mike

Trbovich, Joseph Daniels, and Marion Pelligrini, are individ-

uals and members in good standing of the United Mine

Workers of America (hereinafter sometimes referred to as

“UMWA”). They bring this action on their own behalf,

on behalf of the UMWA and on behalf of all other mem- _

terest in the subject matter thereof.

eis SRR tk Sate Te ee Te

3. Plaintiffs are suing individually, and also as represen-

tatives of all UMWA members in whose welfare and inter-

est it is to obtain an accounting, restitution and <all other

relief required to devote UMWA funds and property ex-

clusively to the welfare and interest of the general UMWA °

membership. _The number in this class is about 200,000 ~

and they reside and work throughout the United States

and Canada so tKat it is impracticable to bring them all

before this Court. Plaintiffs assure the adequate represen-

tation of all. This is, therefore, a proper class action un-

der Rule 23 of the Federal Rules of Civil Procedure.

4. Defendant, United Mine Workers of America, whose

principal office is Mcated in Washington, D.C., is a labor

organization within the meaning of Section 3(i) and (j) of

the Labor-Management Reporting and Disclosure Act of

1959 (hereinafter sometimes referred to as “LMRDA”)

(29 U.S.C. 402(i) and (j)). Although UMWA is named as

a defendant, this action ‘is brought in its behalf and in be-

:half of all its members as a group.

5. Defendant, W. A. (“Tony”) Boyle, is currently the

International President ‘of UMWA, a position he has held

. since January 1963. Before that time, from April 1960

to January 1963 he. served as International Vice President.

As International President and Vice President, Boyle was +

at all times referred to herein as an officer within the mean-

ing of the Act. He is complained about in his official ca-

Pacities and individually. The duties and powers of’the In-

_ ternational President are set forth in Article IX of the

UMWA Constitution:

6. Defendant George J. Titler, currently the Interna-

tional Vice President of ‘\UMWA, has held this post since

January 1966. He is complained of as International Vice

President and individually. The duties of the.Vice

President are set forth in Articie IX of the UMWA Consti-

tution. | -

7. Defendant John Owens, the International Secretary-

Treasurer of UMWA was at all times referred to herein

an officer within the meaning of the Act, having held this

post for 21 years. The duties of the Secretary-Treasurer

are set forth in Article IX of the UMWA Constitution.

8. The individual defendants (hereafter sometimes re-

ferred to as the “International officers”) have occupied and -

-now occupy positions of trust in relation to UMWA and

its members individually and as a group. Said UMWA offi-

cers owed to plaintiffs and to UMWA fiduciary duties, in-

cluding the duty to expend UMWA funds solely for the

benefit of the organization and its members and in accord-

ance with the UMWA Constitution. The funds and prop-

erty of UMWA, including monies contributed by the mem-

bers in the form of dues and other payments, were and’

are in the custody of defendants solely in their fiduciary

capacity. |

9. Section 501 of LMRDA (29 U.S.C. 501) reads:

“(a) The officers, agents, shop stewards and

other representatives of a labor organization oc-

cupy positions of trust in relation to such organi-

zation and its members as a group. It is, therefore,

the duty of each such person, taking into account

the special problems and functions of a labor or-

ganization, to hold its money and property solely

‘for the benefit of the organization and its mem-

bers and to manage, invest, and expend, the same

in accordance ‘with its constitution and bylaws

and -any resolutions of the governing bodies

adopted thereunder, to refrain from dealing ‘with

PENS, erence HERYAD

enacted apneic ent

EN Ay va

= Bl

such organization as an adverse party in any mat-

ter connected with his duties and from holding

Or acquiring any pecuniary or personal interest

which conflicts with the interests of such organi-

zation, and to account to the organization for any

profit received by him in whatever capacity in

connection with transactions conducted by him or

under: his direction on behalf of the organization

9 fe)

Plaintiffs allege that the individual defendants have vio-

lated the fiduciary duties set forth in Section 501(a) of

the Act. More particularly, they are charged herein with,

‘in conflict with the interests of the UMWA and its mem-

bers: (a) surrendering nine million dollars of UMWA as-

~ sets, unjustified by any claim of union benefit; (b) misap-

propnating and misusing union funds for their own per-

sonal gain; (c) expending vast sums from the union trea-

sury for their own self-aggrandizement; (d) diverting union

funds, property, and resources to reduce the strength of

their internal opposition and incréase their own power |

within the union; (e) diverting union funds and resources

to advance their 1969 reelection efforts; and (f) failure

to account for and pay over to the union outside funds.

DEFENDANTS HAVE SURRENDERED 9 MIL-

LION DOLLARS OF: UMWA ASSETS, UNJUSTI-

FIED BY ANY CLAIM OF UNION BENEFIT, IN

CONFLICT WITH THE INTERESTS OF UMWA

AND ITS MEMBERSHIP

10. Defendants have surrendered millions of dollars of

UMWA assets, unjustified by any claim of union benefit,

in conflict with the interests of UMWA and its membership.

83 _

At the end of 1962, the value.of UMWA investments to-

taled $30,753,023. From January 1963 through, December

1968 the International Officers added from union revenues

$1,346,477 in new UMWA investments. But_the total value

of UMWA investments during this pertod of time, a finan-

cial boom period, declined to $24,574,519. This loss of

over seven and a half million dollars in six years has not

been justified. by defendants by any claim of union bene-

fit or interest, and constitutes either grossly reckless con-

duct by them or misappropriation of union assets for un-

authorized purposes.

UMWA had an outstanding loan to Lewmurken, Inc., of -

$1,451,104. Lewmurken, Inc., incorporated in Delaware,

has its principal place of business at 900 Fifteenth Street,.

N.W., Washington, D.C., the UMWA principal headquar-

ters. Lewmurken’ S major asset is ownership of, approx-

imately 30% of the stock of Rocky Mouatain Fuel Co.,

a‘ New Jersey corporation located in Denver, Colorado

once owned by Miss Josephine Roche, a trustee of the

UMWA Welfare and Retirement Fund. Rocky Mountain

Fuel Company went into” receivership in-1942, the year

Lewmurken came into existence, and the 1968 value of

this.30% ownership was only $146,906. Chnsequently,

there is little chance that the loan will ever be repaid. The

investment is unjustified by any union purpose. The loan

to Lewmurken is purportedly for the purpose of “Business

investment and to wiohce employment opportunities of

union members” and payment of this loan is to be “on de-

mand” (BLMR File No. 000063). Lewmurken has an out-:

standing loan to Freeport Coal Company of Morgantown,

Company has,been leased to Kingwood Mining. Co., a non-

union coal mining operation. The UMWA, therefore, has

Re eaters Hokey

=e :

- ear f

cm prrtmmetng emit e mem mmr te an a

im SK SAR TOMER A Rs PSEA VERE RE A . OL ATER MEST

an equitable interest ina non-union operation, in conflict

with the interests of the UMWA and its membership.

DEFENDANTS HAVE MISAPPROPRIATED AND MIS-

USED UNION FUNDS FOR THEIR OWN PERSONAL

GAIN, IN CONFLICT WITH THE INTERESTS OF UMWA

AND ITS MEMBERS

12. The Intemational officers have made a number of

unexplained grants, loans, and expenditures ‘of union money.

Thus for example in 1967, union attorney Harrison Combs

received a grant for $5,000 and union attorney Willard P.

Owens, son of defendant Owens, received one for $10,000.

- And in 1965, without explanation, the union loaned one

“John E. Kusik” $39,862. The defendants, moreover,

have since 1963 received over $21,000 in contingent fund

advances and in. 1963 expended $10,000 for ‘incidental

expenses”. They have not accounted for these grants,

loans, advances and: expenses or given any justification

therefor.

13. The defendants have used, and continue to use,

attorneys on the payroll of the UMWA to defend them-

selves against justified charges of misuse Of union funds

and violation of federal law, in clear breach of their fidu-

ciary duty to the union and’ its members. They have also ~

hired highly-paid outside lawyers to defend them on justi-

fied charges of breaches of trust dnd violations of law and

have paid and are paying. them substantial = from UMWA

funds.

14. Defendant officers have raided the UMWA treasury

to provide themselves with lavish personal benefits unau-

thonzed by the UMWA mem bership and in conflict with

Seige ne UN BE

the interests of UMWA and its membership. Thus, for

example, from January 1963 to December 1968, the UMWA

has paid $68,894 to the Sheraton-Carlton Hotel in Wash-

ington, D. C,, to provide Secretary-Treasurer Owens with

an expensive two-room suite in which he resides. Interna-

tional officers are regularly furnished with Cadillac auto-

mobiles paid for by the union and with special accounts

with which they charge the union for their personal ex-

penses. And they have made gifts out of UMWA funds

to institutions in their home states to enhance their per-

sonal prestige.

1S. Defendant officers have, without authorization, di-

verted funds from the union’s treasury to provide them-

selves with an elite pension plan which guarantees their

retirement, ai full pay, without any contribution what-

soever by the officers, and have thus unlawfully enriched

themselves at the expense of the union. Prior to 1959,

International officers’ pensions were paid out of general

revenues according to an established scale. In 1960, this

pension plan was incorporated into an irrevocable trust to

comply with the Welfare Pension Act. Paragraph 10 of

this trust includes a provision that those who have served |

as International officers for more than 10 years are to re-

ceive their full salary on retirement. To fund, this give-

away, $850,000 of UMWA funds was deposited in a special

“Agency Account”. In about 1963 or 1964 the Internal

Revenue Service ruled this pension was ‘discriminatory. Sub- .

sequently paragraph 10 was amended, and the special provi-

sion relating to International officers was deleted. At this

same time, a new elite pension plan was created for ‘“‘Res-

ident International Officers” for which President Boyle,

Secretary-Treasurer Owens and ex-President Lewis alone

_ qualified. To fund this, an additional $650,000 was trans-

* ferred from the UMWA treasury to the Agency Account

“ ce

SERIO: SP et

from the union’s treasury without any authorization from-

the membership. The elite pension fund was created clan-

destinely and has been kept secret from not only the mem-

bers, but from the International Executive Board, the un-

ion’s highest ruling body, as well. By means of this plan,

the International officers have diverted some $1,500,000

from the ‘union’s funds into a special “Agency Account”

in substantial part for their own pecuniary benefit, in con-

flict with the interests of UMWA and its membership.

16. The International officers have padded the UMWA

payroll with their own relatives who receive exorbitant sala-

ries and expense allowances from UMWA and who perform

services for UMWA, if any, that do not remotely measure

up their compensation. Thus, for example, President Boyle’s

daughter, Antoinette Boyle, had received from UMWA

$190,867.03 in salary and expenses from January 1963

through December 1968. During this same period of time,

President Boyle’s brother, R. J. Boyle, received $186,156.27

from UMWA. Miss Boyle, listed as an attorney, presently

receives a salary of $40,000 plus expenses, a salary equal |

to that of the Vice President of the union. Even the salary

paid the General Counsel of the union does not exceed |

that paid Miss Boyle. Purportedly, Miss Boyle receives this

salary for work done in the Billings, Montana, UMWA of-

fice. But there is little coal mining in this area — some

250 active coal miners and less than: 700 pensioners — and

there is no organizing going on. There is, therefore,-only

the rarest, if any, need for legal advice or work. Secretary-

Treasurer Owens has likewise added relatives to the UMWA

‘ payroll whose services do not remotely measure up to their

compensation. Thus his son, Ronald Owens, the appointed

Secretary-Treasurer of District 6, receives about $8,000

more ifi salary than his highest paid counterpart in any |

other district; and his son, Willard, a UMWA attorney, earns

a a " x7,

as much as the Union’s General Counsel. Furthermore,

- the International President has raised the salary of these

and other employees and made grants of additional sala-

nes to them without prior approval or subsequent ratifi-

cation of the International Executive Board as required by

Article X, Section 2 of the UMWA Constitution. In fact,

the minutes of the International Executive Board reflect

that no reports of these actions were ever made fo the In-

ternational Executive Board for approval. These practices

of defendant International officers of UMWA drain the

union’s treasury for the personal and pecuniary benefit of

these officers and their families, and is in conflict with the

interests of UMWA and its members.

DEFENDANT OFFICERS HAVE EXPENDED VAST

SUMS FROM THE UNION TREASURY FOR THEIR

OWN SELF-AGGRANDIZEMENT, IN CONFLICT WITH

THE INTERESTS OF UMWA AND ITS MEMBERSHIP

17. The International officers have used the funds of

the UMWA for their own self-aggrandizement, contrary to

the best interests of the union and its membership. From

January 1963 to December 1968, $93,375.70 was expended

from the union’s treasury to pay for photographs of de-

fendant officers. This does not include the photographs

_ purchased for use in the UMW Journal. During this same

period of time, $25,000 of UMWA funds were used to

purchase portraits of these officers. This money was used

to glorify the officers, not to benefit the ; organization or

its members.

18. In connection with the 1964 and 1968 conventions

of the UMWA, the International officers expended vast

. sums of money from the union’s treasury for their own

-glorification. For example, they spent over one hundred

thousand dollars for “Boyle” lighters, pens, gavels and

clocks which were distributed to delegates to the 1968 con-

vention. Nor was any reasonable check made on expendi-

tures for the Conventions, and members’ -money was waste-

fully squandered in ather ways which directly benefitted

the incumbent ‘officers. For the 1964 convention, over

$390,000 was paid to bands invited to the convention; in

1968 almost $200,000 was spent for this purpose. In addi-

‘tion to providing music, these bands led Boyle-boosting

delegations through the aisles of the convention, halls, car-

rying professionally prepared Boyle placards.

DEFENDANTS HAVE DIVERTED UNION FUNDS,

PROPERTY, AND RESOURCES TO REDUCE THE

STRENGTH OF THEIR INTERNAL OPPOSITION

AND INCREASE THEIR POWER WITHIN THE

UNION, IN CONFLICT WITH THE INTERESTS

OF UMWA AND ITS MEMBERSHIP

19. Prior to defendant Boyle’s presidency, UMWA con-

ventions were held near the geographic center of the coal

mining regions’ to. minimize transportation costs of dele-

gates and to permit maximum participation of UMW locals.

Upon his taking control of the union, and to prevent mili-

tant working locals oppcsed to him ‘from sending delegates

to conventions, Boyle held the conventions out of the coal

mining areas, in Bal Harbour, Florida and Denver, Colorado,

at a tremendous increase in cost to the. union. Thus, in

1960 when the convention was held in Cincinnati, Ohio,

the UMWA paid a total of $89,505.20 to the Districts for

delegates’ transportation costs. In 1964, when the conven-

tion was held in Florida, UMWA disbursements to the

districts for transportation totaled $140,338. Transporta-

tion costs for the 1968 Denver convention totaled a rec-

ord breaking $338,583. Moreover, in 1964 and 1968 these _

disbursements for transportation were made in cash; no ade-

quate records were kept of disbursements, and many Boyle

supporters were paid as many as two or three times. Sala-

res and expenses of delegates on the various convention

committees were, moreover, grossly excessive. In 1968,

for example, the 39-member Appeals and Grievances Com-

mittee received $40,800.00 in salaries and expenses, despite

the fact that there were no appeals and grievances. In

1960, before Boyle’s presidency, only $139,765 was spent

— for convention committee salaries and expenses. In 1964

that figure rose to $639,782.00 and in 1968 $391,200.00

of union funds were expended for this purpose. Boyle

handpicks men for these plush committee assignments to

reward them at union expense for their support.

20. The International officers have “loaned” excessive

sums from UMWA funds to Districts:19 and 28 to assure

their own political control of these districts and of thé un-

ion, in conflict with the interests of the union and its mem-

bership. From January 1963 to December 1968, defend-

ants authorized $3,702,159 to District 19 and $1,828,498

to District 28. These loans are excessive in terms of the

size and needs of these districts, but they have permitted

the funneling of union money under the heading of ‘‘or-

ganization expenses”’ to political supporters of the defend-

ants. Loans.of a similar nature and for a similar purpose

have been made to other Districts.

21. By manipulating loans and convention expense

money to Districts, moreover, the defendants “stacked” the

1964 and 1968 conventions in their favor. For District

17, the largest UMWA district and a self-sustaining entity,

90)

less than $29,000 was spent for the 1968 convention, *

$3,397 of which came trom the District's own resources.

By contrast, almost $90,000. was spent in 1968 for *

vention expenses”, for District 19, which has about one-

tenth the working membership of District 17, is not self

sustaining, and has received loans of over $3,702,000 in

the past six years.. Over $11,000 of this came directly

from the International, the remainder from money previ-

ously “loaned” to it by the International. Looking at it

from another viewpoint, the union spent over $965.00 for

each delegate from District 19, but only $156.00 for each

District 17 delegate. This policy of manipulating loan and

expense money has benetited the defendants. The 1964

‘COM:

convention, for example, was completely dominated by a

large group of white-hatted delegates, all from District 19

who seized the floor of the convention and the micro-

phones to assure Boyle’s complete control. Furthermore,

the cost of sending delegates to the convention in Denver,

Colorado and Bal Harbour, Florida, was prohibitively high

for many locals and districts. The International paid their

expenses — but as the figures above show — it did so selec-

tively, to insure control of the conventions by the defend-

ant officers. Additionally, many locals which could not

afford to send delegates to the conventions were threat-

ened with-fines unless they turned their credentials over to

Boyle supporters not members of those locals.

22. To assure their continued domination and control

of the union, the International officers have allowed over

600 “bogey” local unions — locals with less than the 10

. working members. required by Article XIV of the UMWA

Constitution for the maintenance of a local union—to re-

main in existence. The vast majority of these locals and

their funds are directly controlled by the International of-

ficers and those working for them. At the 1964 and 1968

Conventions these bogey locals were used by the Interna-

tional officers to assure their control over the union. “Dele- .

gates”” from these locals to the Convention were, in fact,

men handpicked by the incumbents. Not only is the con-

tinued existence of these locals in violation of.the union’s

Constitution, but it results in increased administrative costs

to the union .as well. Moreover, these locals receive over

$100,000 every year in dues, andthe money in their com-

bined treasuries totals several million dollars. If these locals

were, as they should be, disbanded, the members would

transfer to active locals and the money in the defunct lo- -

cal trasuries would revert to the UMWA. Failure to dis--

band these approximately 600 locals has given the Interna-

tional officers unlimited control over substantial sums of .

money which need not be — and, in fact, are not. — reported

under LMRDA. There is also no reliable internal union

auditing of the money in these locals’ treasuries since the

International auditors work directly under and for defend-

ant Boyle.

23. Defendants have caused and permitted the wholesale

buying of political support with union funds. Principally

this is done by adding men to the union payroll. Through

sham designations, union money has been spent to hire

Boyle campaigners and to present and promote Boyle cam-

‘paign rallies. Thousands of dollars from the treasuries of

the International, the Districts, the Local Unions, and the

oar Fund have been used to pad the union payroll with

“coal dust committeemen”’, “‘checkers”, “organizers”, a and

temporary staff members who are, in fact, campaigning for

the incumbent President, Boyle, in his 1969 reelection bid.

Since most of these men receive under $10,000 a year each,

the'union need not, and does not list them as employees in

. federal reports. Nor are they listed in the International

Auditors’ Reports. Moreover, union money is likewise used

RENN NEAR ET FORNEY AAR TY POTEET RTE, CREEPERS Era oot

CR ee eye ny

nara lent RRR x Rene MTR ORT ORIHE CR RARE Utes

oe 4

to buy off dissidents. In 1966, for example, Joe Ladesic

announced he would run for Secretary-Treasurer of District

5 against John Seddon, an ardent Boyle supporter. After

Ladesic received backing from an overwhelming number of

locals, he declined the nomination and was immediately

added to the District’s payroll. Since that time he has

been paid well over $60,000 from the union’s coffers. His

decision to decline. the nomination was clearly motivated

by the promise of well-paid employment by the union. In

District 5 and in other districts as well potential dissidents

and reformers are regularly bought off by full or part-time

employment on the union payroll. This practice costs

UMWA hundreds of thousands of dollars, buys political

support: for the International officers, and is not in the in-

_ terests of UMWA or its members.

. 24. The International -Officers have maintained most of .

the UMWA Districts in trusteeship in violation of law and

at great cost to the UMWA and its membership in money

and in democratic rights. They have squandered large sums

of union funds in defending the Government’s suit to end

the trusteeships, all for their private benefit.

_ 25. In past elections, International officers have con-

doned and permitted union money to be spent to deprive

members of their right to an honest election under the

UMWA Constitution and LMRDA. For example, in 1964

Robert Gordon, a paid International representative, was ob-

served stuffing a ballot box for Boyle and local officers

have been paid to vote members by proxy in violation of

the UMWA Constitution and to alter tally sheets.

_ 26. Defendants have used union funds in efforts to

cover up and justify their misdeeds. Thus, they have ex-

pended union assets to blunt criticism of their misdeeds,

by attacking safety-crusader Ralph Nader, Representative

Ken Hechler and others for their criticisms of defendants’

policies, including their failure to support adequate mine

safety legislation. For example, in May, 1969, Mr. Boyle,

using UMWA personnel, sought to persuade Miss Josephine

Roche to forge John L. Lewis’ signature to a document

defending the Boyle policies and attacking Mr. Nader.

3 | :

DEFENDANTS HAVE DIVERTED UNION FUNDS.

AND RESOURCES TO ADVANCE THEIR 1969

° EFFORTS TOWARDS REELECTION; IN CON-

FLICT WITH THE INTERESTS OF UMWA AND

ITS MEMBERSHIP -

27. In the nomination stage of the election for Inter-

national officers scheduled for December 9, 1969, repre-

sentatives paid by the International blocked secret ballot

voting, the use of observers, the mailing in of nominations,

and ‘broke up rallies for Yablonski all to the personal bene-

fit of defendants. Illustrative of the practice of using repre-

sentatives paid by the International to deprive members of .

their constitutional and statutory rights to a fair election

is the following incident. On June 29, 1969, a rally of -

Mr. Yablonski’s supporters at Shenandoah, Pennsylvania,

was broken up by paid appointed employees of the UMWA—

International representatives Bobby Overa and John Karla-

vage—who paraded up and down the aisles of the meeting

hall heckling the speakers. Karlavage gestured at the crowd

with a clenched fist, ordering them to leave the rally. Ac-

companying Karlavage and Overa were 50 “pickets” paid

$20 each and organized by Karlavage. Karlavage is also

the President of the Shenandoah Borough Council; he had

tried to convince the school board secretary to lock out

the meeting. - Although unsuccessful he managed to deter

zee

babi hast Sh Ae itee Sis bst h bt 8

) SS Se RD TR ey FORMER RN Le AI IRIS

the town police trom giving the meeting requested police

protection.

28. In connection with the December 9 clection, de-

fendant International officers further breached their fi-

* duciary duty in violation of Section 50] of LMRDA dy

utilizing the UMW Journal as a campaign instrument: for

incumbent President Boyle (D.C.D.C. Civil Action No.

2413-69, affirmed Nov. 28, 1969, C.A.D.C. Nos. 23.536.

23,059), a

29. UMW Journal staff and operating funds were. more-

over, used by the International officers in 1969 to prepare

a vehementiy anti-Yablonski scandal sheet entitled ‘“Elec-

tion Bulletin”. This “Election Bulletin” was then dis-

tributed through district offices by district personnel to

UMWA members. Use of union-paid personnel and funds

for such blatant partisan purposes is a clear breach. of the

International officers’ fiduciary duty.

30. On October 27, 1969, on Journal stationery and at

union expense, a barely disguised anti- Yablonski release,

which distorted Yablonski’s contentions about pensioner

voting rights, was distributed to newspaper editors through-

out the country. Use of union money and personnel to

prepare and distribute this release and other campaign ma-

terial and otherwise to promote the incumbents’ reelection

was in clear breach of the officers’ fiduciary duty.

31. Defendant officers have utilized union funds and

personnel in 1969 to publicize. and promote mine safety

meetings which are actually no more than campaign rallies

to promote their reelection.

32. District organizations have been used in.1969 as

ready-made union-paid campaign committees for the

incumbent officers, TH District 30. for example, the Com-

mittee for the Re-Election of our International Officers

operates out of the district headquarters in Pikeville, Ken-

lucky. The chairman of the Committee has a salary of

$11, 130 us a district representative, the secretary of the f

committee is the secretary to. the district president. — In ;

other districts as well, officers, staff members and district

facilities have been utilized in a full time effort to support

the incumbents’ reelection campaign. These districts have

mailed at district expense the ‘Election Bulletin’ (see

paragraph 29) to all union members. District 29. and other

districts’ funds were used directly to sponsor rallies for the

incumbents and to. publish rally programs. Indeed, Boyle’s &

campaign sinerary directs District officials to set up such - *

rallies for Boyle and visits to local mines. All of this is. ra

done at union expense. | .

33. Sham loans have been made to districts to finance.

defendants’ 1969 election campaign. In February 1969,

President Boyle held a series of conversations with presi- | °

dents of various districts during which he told each of

them to request a loan from the’ Washington headquarters _ %

to their districts in ‘order to finance Boyle’s reelection cam- |

paign. Subsequently, UMWA International officers Thave

written checks: to these districts for more than a million

and a half dollars in loans to complete these arrangements. :

The funds so ioaned are converted to cash by various de- y

vices in. the districts and used in Boyle’s campaign.

34. ‘Union’ funds and promises of jobs on the union <a

payroll have been used at defendants’ direction to recruit

men to support and eampaign for the defendant officers. ’

For example, Carson Hibbitts, President and Secretary-. —

Treasurer of Districts 28 and 30 and International Execu-

tive Board Member of District 28, who holds these positions

CS OP LO mwpnndnsary, }

a 96

by appointment of President. Soule paid Albert Matney,

~ Perry Fuller and Ray Hutchinson to attend meetings in

Washington, D.C. and Pittsburgh, Pennsylvania, with mo-.

ney from the District 28 treasury. The delegation was

told by Ray Thornbury, a paid International representative,

to return to their local unions and campaign for Boyle.

Additionally, Thornbury told Hutchinson that if he would

_support the union’s “present policy” he would, in the near

future, be rewarded with a job with the union. Use of

union funds to recruit campaign ‘workers ‘is in clear viola- °

tion. of the incumbent officers’ fiduciary duty. The same

Carson Hibbitts with the knowledge and assent of defend-

ant officers is using UMWA funds to prevent a local union

at Vansant, Virginia, from having the right to elect local

officers who do not favor him and Boyle. .

35. In less direct ways, too, defendants have spent

union funds to buy Boyle campaign workers. On October

23, 1969, for example, the International paid 500 miners |

$60 a piece to come to Washington to “lobby” for the

Safety legislation then pending ‘in Congress. The thirty .

thousand dollars spent in this venture was to promote the

candidacy of the incumbent officers, not to assist in the

passage of the coal mine health and safety bill. At no

time was the union’s chief lobbyist, Joseph A. Yablonski,

‘ acting director of Labor’s Non-Partisan League, told of the

plan to bring the “lobbyisis” to Washington, nor was he

ever given an opportunity to coordinate their efforts. In

fact, the bill, which passed the House on October 29. by

389-4 and the Senate by a 73-0 roll call vote on October

2, was assured of passage long before these “lobbyists”

appeared in Wishington. Indeed, these “lobbyists” acted

contrary to tue best interests: of the union, deriding Con-

gressmen who fough: for this safety legislation but who

_ had’ opposed Boyle’s reelection. “This was an obvious

\ .

ene

junket for Boyle supporters paid out of union funds in

breach of the International officers’ fiduciary duty to the

UMWA membership. Junkets such as this have been used

frequently to enlist Boyle supporters at a cost to the union

of more than $100,000 a year.

36. In an effort to prevent a fair and honest election

on December 9, 1969, the defendant officers incurred ad-

ditional costs in the printing of official baliots. Thus,

they authorized the printing of an excessive number of

ballots, including 51,000 which-were not mailed to the

locals but were delivered directly to defendants at the

union’s headquarters. Their explanation for these extra

ballots — that some ballots might get lost in the mail —

is not entitled to belief, in view of Secretary-Treasurer

Owens’ admission that he could not recall any complaints

of lost-ballots in the previous election for International of-

ficers. Furthermore, in an attempt to defeat the jurisdic-

tion of the U.S. District Court (C.A. 306] -69), the defend-

ant International officers authorized the printing of the bal-

lots, tally and return sheets at a higher, overtime rate. The

authorization of printing a grossly excessive number of bal-

lots at a higher rate than normal was given to assist the

incumbent International officers, at the expense of the

union and its membership.

37. To prevent a fair election, the defendant Interna-

tional officers have failed to perform their statutory duties

and have thus caused the union to incur substantial addi-

tional expense. Section 401¢c) of LMRDA requires the

union to maintain a current membership list at their prin-

cipal headquarters for inspection by ‘bona fide candidates

for offices in the union. In a proceeding in the U.S. Dis-

trict Court (C.A. 3061-69), Secretary-Treasurer: Owens ad-

mitted that he had failed to comply with the law in this

respect. Because of this failure, the union was required

to spend large suims to compile a membership list on an

expedited basis. Lists exist in each District office, ac- :

cording to Owens; had the officers requested copies of

these lists in. advance of the fair election lawsuit — as

required by law — the cost of compiling a .membership

list would have been substantially lower.

DEFENDANT BOYLE HAS FAILED TO ACCOUNT

~ FOR. AND PAY OVER TO THE UNION OUTSIDE

FUNDS RECEIVED BY VIRTUE OF HIS UMWA

POSITION, IN CONFLICT WITH THE INTERESTS

OF THE UMWA AND ITS MEMBERS

38. Annually, defendant Boyle and the union’s Gen-

eral Counsel, Edward Carey, receive substantial remunera-

tion from the National Bank of Washington for sitting on

its Board of Directors. The UMWA owns 75 percent of:

the National Bank, and Boyle sits on the Board of Direc-

tors solely by virtue of his position in the union. In con-

flict with his fiduciary duties, however, he has not ac-

counted to the union for these funds nor paid over these

sums to the union treasury. Furthermore; he has made

no effort to collect such sums from Carey for the union.

GENERAL ALLEGATIONS AND RELIEF

39. By reason of the foregoing acts and omissions of

the defendants, they have violated the several duties pre-

scribed in 29 U.S.C. 501(a), and, specifically, they have

failed to hold the UMWA’s money and property solely

for the benefit of the UMWA and its members; they have

failed to manage, invest, and expend the UMWA’s money

in accordance with its Constitution and Bylaws; they have

dealt with the UMWA

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