# Appendix — Trbovich v. Mine Workers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0337%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1972 - **Citation:** 404 U.S. 528 ## Text a i Te Ce 4 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. cA 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 LS THE CASILLAS PRESS, INC.—1717 K Street, N. W.—Washington, 0. C.~223-1220 i} \ . s \ . \ . | ; . | 7 ‘ 4 . . ; . + : ’ , + ‘ : . “ . . . ‘ : | . . : ; . ‘ . . F . ; ’ - ‘ ° ; . « 2 { . . 7 . - . / : ; . / ‘ ‘ / ‘ ; t . : | ; | ° . f ‘ . J a ‘ . . 4 . . » ° . ~ ° . ‘ ; . 2 7 . . ~ . . te . ' . oe : - ; . ‘ : ; | ° : . | . . . ’ » ‘ ‘ - , | . . ! . 7 ° . | . \ | . 7 . : a . : ’ fe we teat ee tine eae (i) . 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. a CRETE REEDS 25:0 R te Balebok a) rephdninil «18 18. 30 30 30 April 2 Sw 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 23 3. a -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 eu 12 13 18 20 20 Zz 25 4 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. 10 10 1] 17 23 23 23 5 _ 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. 3 29 29 22 2 Aug. 7 14 21 21 6 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. , 14 16 Oct. 2 12 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. L6 aie) ad 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. 17 17 18 18 ~ 20 2 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. - 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 35 [EXHIBIT B TO MOTION FOR LEAVE TO INTERVENE] TELEGRAM 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, 36 [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 38 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 . ‘\ ‘ . \ \ 39 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 40 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. 4] 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 42 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 = - 43 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 44 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 > 46 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 ~ 47 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 we ~/ ° 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. tr IS BOO REAR RRA SOARES DEE 50 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. . > ¥, ao as 4 4 = a2 c 4 a 54 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 56 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 = : nN ~ 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) 59 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, 6] 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 ot PLES IE Gs TAP URE EY MEATS, i é | IRN 6 i iy VF at a RAS itp UPL TES Y OD 62 {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. 3 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 64 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 65 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. 4 Se ea Die er ae, abana ge gs Chg EN a cinta Be se; 2 “oe aia g . 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. 67 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 68 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 paign.© It seems unlikely, particularly in light of 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 . ~~ 70 ‘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 2. 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.) bs 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. a, , 7 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 » me 6 eal i ' ee ee a ee a ne a ar RS Laie So ON saa. =" 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. 73 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. . 74 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 4. 75 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)] b] 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, 76 “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 _ 77 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 — By 78 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. 79 [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. ED 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- _ bers of '-UMWA, all of whom have a joint and common in- © terest in the subject matter thereof. eis SRR tk Sate Te ee Te - ' c E & e 4 a 80 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 81 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. A 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. 11. In. the fiscal veut ended December 31, 1968, the © 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, West Virginia. Recently, the land owned by Freeport Coal © 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 &4 an equitable interest ina non-union operation, in conflict with the interests of the UMWA and its membership. B 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 85 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 86 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, 87 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. Cc 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 88 -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. ~D 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 89 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 91 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 a 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 93 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 2 zee babi hast Sh Ae itee Sis bst h bt 8 ) SS Se RD TR ey FORMER RN Le AI IRIS 94 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 a5 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 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 inac- tion and apathy in the face of tyranny and violence, but there is one thing we do know: We shall keep up this fight, whatever you do, because the. American people will not forever tolerate bureaucratic indifference to 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. © The evidence which we have presented to you over a 7 month period demonstrates beyond peradventure of doubt that the December 9th election must’ be set aside _ for each of the following four reasons: 1. Pre-election violations of law, including the massive use of union personnel and the union treasury, require a ~ new election. 2. The voting of pensioners through unconstitutional bogey locals was obviously unlawful and requires a new election. 3. The Over a hundred violations on election day, which Joseph A. (Chip) Yablonski recounted in his Affi- davit, were probably matched some tenfold by those ah which we have no information and these, too, re- ar a new election. > ee 4. The incidents of violence and the atmosphere of intimidation and fear made a fair election’ impossible, and require a new election. | 126 Your investigation has failed to deal at all with points 1, 2, and 4 and-has been woefully inadequate on point 3. . One can only conclude from this half-hearted investigation that, while you feel the need to avoid a public outcry if you failed to set aside the election, you have decided to act on some technical ground rather than on a basis that will get to the rest of the corruption, violence and. tyranny in this union. We deal below with each of the four mat- ters you should have investigated. 1. The Department has done nothing to investigate the preelection violations of law, especially the massive use of union personnel and the union treasury. In my letter to you of January 13, 1970 we asked that the De-— partment examine every voucher and every expenditure of ‘the UMWA during 1969; we asked that you interrogate all UMWA personnel (in the fieJd and in the head office), and .all the additional personnel added to the payroll during 1969. You have done virtually nothing about this. Jo- seph A. (Chip) Yablonski outlined in’his testimony before the Senate Labor Subcommittee the steps your Depart- ment would have to take to conduct a real investigation of the UMWA election: (i) lists of all persons employed’ at all levels of the union must be made for 1968 and 1969 and compared; only in this way can the extent to which the UMWA unlawfully padded its payrolls be made known; (ii) all expense vouchers for this period must be carefully scrutinized to ascertain how much really went to the in- -cumbents in the form of kickbacks to finance their reelec- tion. (Privately we have been told that your staff regards this as an impossible task at this: late date. We do not think it is. Moreover, had you b [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0337%3A01. Public record. Not legal advice.