CFDE, that CFDE is now the sponsor of this lawsuit which was initiated during the campaign, and that CFDE supports other challenges to the election. For persons to organize to carry forward such a suit as this, which involves possible breaches of trust and possible denials of free expression, is entirely appropriate and the legality of such an undertaking is not changed because the initiative comes from defeated candidates or their supporters in a past election. To interpret the words of § 401(g) "to promote the candidacy" in the manner defendants urge would conflict with other titles of the Act. The prohibitions of § 401(g) refer to direct contributions from union treasuries to candidates for, as examples, the printing and distributing of campaign literature, the renting of campaign offices, and the paying of campaign personnel. Under the circumstances of this case, at least, this lawsuit is not in the class of activities prohibited by § 401(g).
In Moschetta v. Cross, 49 L.R.R.M. 2428 (D.D.C. 1962), then District Judge, now Circuit Judge Tamm ruled that LURC, a dissident organization of local union officers within the Bakery Workers Union, was protected by Title I in its efforts to oust the incumbents from any harassment by the union's administration. See also, Moschetta v. Cross, 46 L.R.R.M. 2810 (D.D.C. 1960). Accordingly, union contributions from local treasuries to CFDE for the carrying on of this lawsuit as framed by the Amended Complaint are not illegal.
With respect to the financing of the CFDE challenges to the results of the election, whether by complaints lodged with the RCIA Executive Board, complaints lodged with the Secretary of Labor, or the initiation of the mandamus action, the Court also finds these activities to be outside the prohibitions of § 401(g). It does not promote the candidacy of any person if an election is declared invalid by a court under Title IV's procedures despite the fact that in the rerun election the candidates may be identical. Neither the winner nor the loser of the disputed election gains votes by the setting aside of the election. Such action is not a votegetting device but merely returns the parties to their pre-election status; it does not place any candidate into office.
Appeals and complaints after the ballots are counted do not constitute part of the election itself. Any monies employed to promote legitimate legal challenges to the election therefore cannot fit the description of promoting the candidacy of a person in the election. Thus, CFDE's activities, including its raising of funds through per capita taxes, to pursue challenges to the RCIA election are not illegal. Compare Bakery & Confectionery Workers Internat'l Union of America v. Ratner, 118 U.S. App. D.C. 269, 335 F.2d 691 (D.C. Cir. 1964) and Johnson v. Nelson, 325 F.2d 646 (8th Cir. 1963), with Wirtz v. Independent Workers Union of Fla., 272 F. Supp. 31 (M.D. Fla. 1967).
CFDE, although technically an organization of local unions, is in practice a group of individuals who occupy leadership positions in RCIA local unions and state councils and who have authority to speak for their respective constituencies. These individuals are themselves union members. As such, it seems apparent that under § 101(a)(2) they have the right to meet and assemble freely with other members. But obviously they cannot speak and they cannot assemble effectively if they cannot organize. If union democracy is to be preserved, members must not lose the protections of free expression because they decide to proceed on one basis rather than another. See Moschetta v. Cross, 49 L.R.R.M. 2428 (D.D.C. 1962). Indeed, some form of joint activity seems particularly appropriate when realties of modern litigation are considered and it is realized that the full resources of the International Union are available and in fact being used to defend the newly elected officers against these very attacks.
Apart from the provisions of the Act, defendants contend that CFDE's manner of raising funds violates the RCIA Constitution because it is an appeal for local funds not properly approved by the International Board and because it is a per capita tax upon the local union's treasury for purposes outside the union's proper expenditures. The constitutional provisions set out in the footnote are far from clear in this regard.
But even accepting the fact that the interpretation urged by defendants is a fair interpretation of the particular provisions of the Union's Constitution and entitled to weight under the rule of English v. Cunningham, 108 U.S. App. D.C. 365, 282 F.2d 848 (D.C. Cir. 1960), the contrary requirements of § 101(b) of the LMRDA
must prevail. That section states that any provision of a labor organization's constitution inconsistent with the provisions of § 101(a) is of no force or effect. Since the constitutional interpretation suggested interferes with activities of CFDE that are protected by the Act, it is of no force or effect. See Moschetta v. Cross, supra.
Plaintiffs press for more than a declaratory judgment, contending that Housewright, by sending a letter which was designed to interfere with CFDE's fund-raising activities, breached his trust as an officer under Title V. But Housewright acted on advice of counsel in an area reasonably open to legal dispute. Under the circumstances, his actions do not rise to the level of a breach of trust. Plaintiffs' reliance on the Bakery Workers litigation, where the union came into court seeking to enjoin LURC, Moschetta v. Cross, 49 L.R.R.M. 2428 (D.D.C. 1962), is not in point. In that case there were two outstanding injunctions against the incumbents restraining their interference with the challengers' political activities. See Moschetta v. Cross, 46 L.R.R.M. 2810 (D.D.C. 1960), and Alvino v. Bakery Workers Union, 46 L.R.R.M. 2812 (D.D.C. 1960).
Plaintiffs are, however, as already indicated, entitled to a declaration of the rights of CFDE. The Court holds that CFDE's activities are legally protected to the extent that they encompass the pursuit of this lawsuit and the pursuit of challenges to the election. These activities may be lawfully financed from local union treasuries upon a proper vote by the majority of the members. To this extent the defendants shall be enjoined from directly or materially interfering with these CFDE activities in any manner, including threatening, disciplining, penalizing, or coercing individual union members or locals by reason of their support of CFDE. To the extent that the defendants have already interpreted the Constitution so as to call into question the legality of CFDE contributions, the Court holds such interpretations are contrary to § 101(a)(2) and § 101(a)(4) and hence are of no force or effect under § 101(b). On the other hand, the injunction obviously shall not extend to electioneering activities on behalf of RRR candidates in any subsequent election and there is no legal basis on which CFDE may assume past election obligations.
See Wirtz v. Independent Workers Union of Fla., 272 F. Supp. 31 (M.D. Fla. 1967). Finally, the Court in its discretion will not grant plaintiffs' request for attorneys' fees for this phase of the litigation.
The final issue is a tempest in a teapot. Suffridge was President of the Union from 1947 to 1968 and since the latter date has acted as President Emeritus under a specific provision of the Union's Constitution. He served well and faithfully. His membership dues, amounting to between $48 and $84 a year, were paid for him by his local union commencing in 1954. Plaintiffs contend that by reason of this circumstance he must be considered not an active member, that since only active members can be officers under the RCIA Constitution
he was ineligible for office, and that accordingly the Court should order Suffridge to return to the Union treasury all salary he has received from 1954, including compensation he is now receiving as President Emeritus.
The RCIA Constitution does not prohibit a local union from paying an officer's dues and plaintiffs' contentions are without merit.
The testimony disclosed that Suffridge had been chief officer of his local union and in a substantial degree had been responsible for its growth and success. After Suffridge assumed higher office the local desired to honor him. When Suffridge was at a union dance, the local, in the midst of other festivities and with little formality, made him a "life member." Thereafter the local assumed his dues with his acquiescence. This state of affairs was not widely publicized and became an issue in the contested election, even though, by that time, Suffridge was not himself standing for office. It was in this context that the manipulation of Union membership records referred to earlier and other dissimulation took place. This reprehensible conduct heaped coals on this controversy and has given the issue more emphasis than it deserves.
Under the Union's Constitution as it existed in 1954 a paid-up life membership only could be given to an unemployed member over age 65.
Plaintiffs suggest Suffridge accepted such a membership at the hands of his local and in effect must therefore be considered an inactive member. But Suffridge remained employed, was not over age 65 at the time and noted his ineligibility for paid-up life membership status when he was honored. Under the present Constitution a paid-up life member must not be working within the Union's jurisdiction.
Suffridge was always and still remains employed by the RCIA. Thus, he never was a paid-up life member and an effort to transform him into one when he did not even possess the prerequisites will not be entertained.
The simple issue presented is whether the Union's Constitution prevents a local from paying an officer's dues. While the language of the Constitution as a whole creates some ambiguities in this regard, there is no explicit prohibition and the Constitution has been interpreted by the International Executive Board as permitting such payments. Section 6(I) does not state that all members must pay their own dues but only that each member's dues must be paid.
This is necessarily so, the defendants point out, because under § 33(E) the local unions are permitted, in certain circumstances, to pay the dues of an active member.
If § 6(I) were to be read that all members must pay their own dues, it would conflict with § 33(E).
Defendants contend that the language of § 33(E) is permissive and not exhaustive, as plaintiffs allege, and would permit a local union to pay the dues of a member, including an International officer, it wanted to honor. As other examples, former International President Vernon A. Housewright and former International Vice President Murray Plopper were granted such honors while in office. Given the wording of § 6(I) and § 33(E) it seems to the Court that the International Executive Board's interpretation of the Union's Constitution is reasonable and must be accepted under the doctrine of English v. Cunningham, 108 U.S. App. D.C. 365, 282 F.2d 848 (D.C. Cir. 1960). Thus, Suffridge, although he did not pay his own dues after 1954, was always an active member in good standing and not a paid-up life member and was thereby eligible to hold International office.
Plaintiffs speak in terms of breach of trust. In spite of the constitutional interpretation it is conceivable that an officer would breach his trust if he permitted a local to pay his dues in return for favors. But here the dues payment flowed more naturally from the local's pride that "one of its boys" had reached the top and there is absolutely no indication that any favors were received by the local in return for its generosity or indeed that any favors were even requested. Thus, on the facts of this case, there is nothing that would warrant bringing the strictures of Title V into play. If the membership does not wish this practice to continue in the future, democratic processes are available to bring about an appropriate amendment to the Union's Constitution.
This Memorandum Opinion shall constitute the Court's findings of fact and conclusions of law. Counsel to settle order in ten days.